Kinder, Gentler Military Tribunals? You Betcha. . . .

MAJOR UPDATE: THEY'RE BAAACK. . . .

Is President Obama planning to use highly criticized military courts to prosecute detainees at Guantanamo Bay? According to a New York Times article, he is.

Civil libertarians within Obama's liberal base passionately opposed the Bush administration's use of military tribunals to prosecute terrorism suspects. Also, the Supreme Court has ruled that Bush's commissions failed to offer sufficient procedural protections for defendants.

Obama campaigned against the use of military tribunals and boasted of his vote against the Military Commissions Act of 2006, which attempted to divest certain Guantanamo Bay detainees of habeas corpus rights. The Supreme Court overruled those portions of the legislation in 2008 and specifically held that the alternative process for determining whether the government had adequate grounds to detain suspects was constitutionally defective.

Kinder, Gentler Military Tribunals?
Perhaps the Obama administration believes that it can clean up the military courts. But if he ultimately decides to opt for military tribunals, this would probably reflect a bare desire to win difficult terrorism cases and to avoid political fallout from holding the trials in federal courts.

A lot of the evidence against the terrorism suspects includes hearsay and statements extracted through torture or other coercive techniques. Federal rules of evidence would not permit the use of such materials, which would make prosecution difficult [Translation: would require the government to prove its case "beyond a reasonable doubt"].

Furthermore, the prosecution of terrorism suspects in federal courts would generate another round of criticism from conservatives and moderates who oppose the idea. Although federal courts have prosecuted numerous terrorism suspects in the past (with high conviction rates), the issue remains a political lightning rod.

Obama's Biggest Contradictions Occur in His Anti-Terrorism Policies
In terms of disappointing his base, Obama's biggest contradictions have occurred in his anti-terrorism policies. Bush's practices in this area generated massive political heat from liberals both domestically and abroad. Obama's election victories (especially in the Democratic primaries) occurred in large part because the Left believed that he would dramatically alter the state of affairs in this area.

Although Obama has taken formal steps that retreat from Bush's policies, the substantive differences are too small to measure. During his first week in office, Obama issued executive orders that call for the closure of Guantanamo Bay within a year, the cessation of torture and the termination of CIA "black sites," or secret prison facilities where individuals face prolonged detention under poor conditions that likely involve torture.

But Obama has embraced many of the same positions that liberals and Obama himself criticized. For example:

* Obama and members of his administration have embraced the use of rendition. Many of Obama's most ardent defenders blasted progressives who criticized Obama on rendition as jumping the gun. Today, their arguments look even more problematic than in the past.

* Obama has invoked the maligned "state secrets" defense as a complete bar to lawsuits challenging potential human rights and constitutional law violations.

* Obama has argued that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus rights, even though many of the detainees at the facility were not captured in the war or in Afghanistan.

* Even though it no longer uses the phrase "enemy combatants," the Obama administration has taken the position that the government can indefinitely detain individuals, whether or not they engaged in torture and whether or not they fought the United States on the "battlefield." This logic combined with the denial of habeas to detainees in Afghanistan could make Bagram the functional equivalent of Guantanamo Bay.

If the New York Times article is accurate, then the use of military tribunals issue will join the list of policies that Obama has endorsed, despite the loud liberal criticism that Bush received when he did the same things. It remains unclear, however, whether these contradictions will erode any of Obama's political support. Despite his blatant departure from some of the most important progressive issues that defined his campaign, liberals remain quite pleased with Obama's performance.

SEE RELATED COVERAGE:

They're Baaack. . . .

Glenn Greenwald has also covered many of these issues. He is one of the few progressives who has consistently adhered to progressive politics during the Obama-era.

Et Tu, Olbermann? Some Liberals Finally Realize That for Certain Issues, "Change" Actually Means "More of the Same"

Ever since President Obama became the frontrunner in the Democratic primaries, many liberals have gleefully discarded the useful concepts of dissent, critical thinking, and a sanely guarded view of politicians. Rather than approaching politics with critical distance, many liberals became so emotionally charged over the prospects of winning the White House, expanding the party's lead in Congress, and electing an amorphously left-identified black man that they refused to listen to others who questioned whether any politician could deliver the grand promises of "change" that Obama and his supporters made during his campaign.

After President Obama took office, it became abundantly clear that he would continue engaging in some policies that liberals derided during the Bush administration. A few progressives criticized the continuation of these policies, the inherent contradiction between Obama's promises and his embrace of these policies, and the hypocrisy of liberals who failed to condemn Obama, even though they skewered Bush for the exact same conduct. These arguments, however, led to a concerted "pushback" from many liberal protectors of the administration.

Dissenting Justice, for example, provoked a storm among some liberals after running a series of essays which argues that Obama's position on "rendition" differs from Bush's practices in "form" rather than "substance." Since that time, President Obama has embraced positions that are similar to or indistinct from Bush's stance on policies such as state secrets and indefinite detention.

Et tu, Olbermann?
It now seems that some liberals have given up trying to deny the closeness of Obama's and Bush's positions on some aspects of antiterrorism policy. MSNBC commentator Keith Olbermann ranks among the most effusive and uncritical supporters of President Obama. During the Democratic primaries, Olbermann was responsible for spreading a grossly distorted -- actually, downright deceitful -- story which implied that Hillary Clinton remained in the primaries because she was waiting for the possible assassination of Obama. Olbermann produced a nearly 1/2-hour rant in which he accused Clinton of being racist, selfish, insensitive, and many other undesirable adjectives. The Obama campaign immediately emailed the video to other media, after which it quickly spread around the Internet.

Until recently, Olbermann did not bend in his effusive portrayals of Obama and his scathing and acidic criticism of his opponents. But even Olbermann has shifted away from his uncritical stance now that the Obama administration has again deployed a broad state secrets defense to oppose lawsuits challenging the Bush administration's use of warrantless wiretapping and rendition.

Salon blogger Glenn Greenwald, who, unlike many other liberals, has not become seduced into uncritical submission by the Obama administration, does a great job analyzing Olbermann's and other liberals' opposition to Obama's position on state secrets. Earlier this week, Greenwald himself wrote a lengthy article that criticizes Obama's deployment of the state secrets doctrine.

Here is a clip from Greenwald's essay on Olbermann:

Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

The fact that Keith Olbermann, an intense Obama supporter, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here.

According to Greenwald, Obama's biggest supporters have no choice but to point out how his policies mimic Bush's because:

It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Unfortunately, in the recent past, many liberals actually placed "tribal loyalty" above intellectual consistency and adherence to progressive values.

Greenwald also observes that the state secrets issue has generated passionate criticism on vehemently pro-Obama sites such as Daily Kos and Booman Tribune and at the reliably liberal, though not as visibly pro-Obama, TPM. Previously, commentary on Daily Kos that offerred even slightly critical perspectives on the Obama administration often faced stiff resistance or, even worse, silence and dismissal. Apparently, things are indeed changing for a few people.

Related readings on Dissenting Justice:

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

Rendition, Secrecy and Torture: Inseparable?

Forcing His Hand or Providing Political Cover? Congressional Democrats Introduce Legislation on "State Secrets"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition