IMPORTANT NEWS ALERT: Former President George W. Bush Apparently Suffering from Acute Amnesia

An article in today's Washington Times indicates that former President George W. Bush is suffering from acute amnesia. The article covers a speech Bush delivered in Erie, Pennsylvania. After the speech, Bush answered questions from the audience.

The article reports that Bush, adhering to protocol that governs former presidents, declined to criticize President Obama directly. Bush's defense of many of his policies, however, implicitly criticize Obama (or at least validate many conservative critiques of Obama).

A closer reading of Bush's comments reveals that he is apparently suffering from acute amnesia. Bush, for example, stated that:

I know it's going to be the private sector that leads this country out of the current economic times we're in. . . . You can spend your money better than the government can spend your money.

This simple truism, however, hides some important issues, like the fact that Bush -- not Obama -- proposed TARP (or the "bailout") and signed it into law. Bush and Treasury Secretary Paulson advocated the passage of TARP on the grounds that pumping nearly $1 trillion of "our money" into the private sector would help end the financial crisis.

Furthermore, even after many Republicans criticized the idea of providing federal financial assistance to the automobile industry, President Bush (not Obama) proposed using TARP funds to bail out Detroit. TARP for banks and car companies began during the Bush administration, not with Obama.

To his credit, Bush resisted the opportunity to criticize Obama for closing the Guantanamo Bay detention center. Prior to leaving office, Bush said that he wanted to close the facility as well.

Nevertheless, Bush's comment on the danger of terrorists leaves the impression that he suffers from amnesia. For example, Bush stated:

[T]here are people at Gitmo that will kill American people at a drop of a hat and I don't believe that -- persuasion isn't going to work. Therapy isn't going to cause terrorists to change their mind. . . .

Although Bush mocked the idea of using therapy to reform terrorists, he sent many Saudi detainees from Guantanamo Bay to Saudi Arabia in order to participate in the "Prince Mohammed bin Nayef Centre for Care and Counseling" program, which uses a 12-step program, combined with therapy, to rehabilitate terrorists. The program enjoys mixed reviews, and some of the detainees Bush referred to the program have resumed their participation in Al Qaeda.

Furthermore, Bush seems unable to recall that President Obama apparently agrees with his comments about the dangers of Guantanamo Bay detainees. Obama, like Bush, has decided to use military tribunals, in addition to civilian courts, to prosecute suspected terrorists. Obama has also stated that the government will use the controversial practice of "preventive detention" for "dangerous" individuals who do not face prosecution in either civilian or military courts. The Washington Times article does not mention whether Bush acknowledged the overlap between his policies and Obama's policies related to terrorism, nor does it report the contradictions between Bush's words and his policies.

Finally, Bush seems unable to comprehend current proposals for health care reform. For example, he said that:

There are a lot of ways to remedy the situation without nationalizing health care. . . .I worry about encouraging the government to replace the private sector when it comes to providing insurance for health care.

Of course, President Obama has not proposed "nationalizing health care." Instead, at most, he supports a public plan option that will serve alongside private insurance. If this represents "nationalized" health care, then the country already has a nationalized system, because the federal government and the fifty states already serve as public payers of health care, under Medicare, Medicaid, the VHA, SCHIP, and various other programs. Although conservatives argue that an additional public plan option would cause the collapse of private insurance, this point is debatable, and it certainly is not a specific piece of Obama's proposals.

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.

Change = Same?

Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.

Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.

The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.

The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.

The SCOTUS blog has the details:

Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."

Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the united States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:

First, the new version requires proof of “substantial” support of Taliban or
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:

[A]dopted almost the same standard the Bush administration used to detain people
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.

This sounds like the "extraordinary rendition"/"rendition" debate.

PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.

Evening Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Plus More . . .

Obama Is a "New Democrat"
According to Politico.Com -- DC's gossipy political newspaper -- Obama told the moderate "New Democratic Coalition" that he is one of the gang:

“I am a New Democrat,” he told the New Democrat Coalition, according to two sources at the White House session. . . .

He said he “supports free and fair trade,” according to one attendee, and noted that he was “very concerned about a return to protectionism.”

Obama made similar comments last month during his trip to Canada – America’s largest trading partner – and has shied away from the NAFTA-bashing he engaged in during last year’s Democratic primary.

Last year, calling Obama a "moderate" would have caused leftwing bloggers to spew molten lava (I have the scars to prove it). Times have changed. I do not see him as a fiscal conservative. He is cutting taxes and spending -- just like Bush!


Congress Spends Big, But Gives Taxpayers a Few Coins Back!
After passing an omnibus budget laden with billions of dollars in earmarks, Congress voted to forgo its cost of living salary adjustment next year.


Former GITMO Detainee Now Taliban Commander of Southern Tier Forces in Afghanistan
Great. . . .

The Taliban's new top operations officer in southern Afghanistan had been a prisoner at the Guantanamo Bay detention center, the latest example of a freed detainee who took a militant leadership role and a potential complication for the Obama administration's efforts to close the prison. U.S. authorities handed over the detainee to the Afghan government, which in turn released him, according to Pentagon and CIA officials.

Cop Poses as a Terminally Ill Cancer Patient?
You betcha -- to stop a physician-assisted suicide ring. Yes - ring. Group officials say they only gave out information on how to end one's life. The State of Georgia says otherwise.

Five GITMO Detainees Submit Document to Military Commission Admitting to Planning 9/11 Attacks

Well this should generate debate around the Internet. According to a New York Times article:

The five detainees at Guantánamo Bay charged with planning the Sept. 11, 2001, terrorist attacks have filed a document with the military commission at the United States naval base there expressing pride at their accomplishment and accepting full responsibility for the killing of nearly 3,000 people.

The document, which may be released publicly on Tuesday, uses the Arabic term for a consultative assembly in describing the five men as the “9/11 Shura Council,” and it says their actions were an offering to God, according to excerpts of the document that were read to a reporter by a government official who was not authorized to discuss it publicly.

The document is titled “The Islamic Response to the Government’s Nine Accusations,” the military judge at the Guantánamo Bay detention camp said in a
separate filing, obtained by The New York Times, that describes the detainees’ document.

The document was filed on behalf of the five men, including Khalid Shaikh Mohammed, who has described himself as the mastermind of the Sept. 11 attacks.

Signs of Life: Human Rights Groups Contest Pentagon Report on Guantanamo Bay

Last week, the Pentagon released a report -- commissioned by President Obama -- which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, human rights activists passionately contended that the treatment of detainees at the facility violated domestic and international law.

The New York Times reports that the Center for Constitutional Rights and Amnesty International (two vocal critics of Guantanamo Bay) have blasted the report. The organizations played a large role in condemning Bush's policies at the detention facility, and the Center for Constitutional Rights represents several detainees.

Here's a clip from the article:

The Pentagon official who inspected the Guantánamo Bay prison at the behest of President Obama and declared its conditions humane described himself Monday as a “fresh set of eyes” who had been given free rein to go about his work.

But detainees’ lawyers and human rights groups ridiculed the 85-page report that the official, Adm. Patrick M. Walsh, sent to the White House this weekend. They called it a public relations gesture by the new administration to try to quiet criticism of the prison while officials work to close it within a year.

“There is no basis to believe, other than his say-so, that this was an independent report,” said Vincent Warren, executive director of the Center for Constitutional Rights.

Coming in the early days of the Obama administration, the exchange was notable for its similarity to the back-and-forth during the Bush years over what the Guantánamo prison is really like.

The article reports that the Pentagon prepared the study by conducting "random visits and interviews with detainees, guards, interrogators and commanders." Also, the author, Admiral Patrick Walsh, "is the vice chief of naval operations, and the prison is on a naval base at the southeastern tip of Cuba." These factors undermine the credibility of the study. The article reports that human rights attorneys have released their own study based on interviews with their clients; the human rights report makes dramatically different findings than the Pentagon study.

I wonder how "liberal" bloggers who have accused progressive critics of Obama's terrorism-related policies of being anti-liberal will react (if at all) to the latest news.

Attorney General Holder Visits Guantanamo Bay After Pentagon Report Declares That Detention Facility Complies With Geneva Conventions

Last week, the Pentagon released a study which concludes that the Guantanamo Bay detention facility complies with the Geneva Conventions. During the Bush administration, however, human rights groups maintained that the treatment of detainees fell short of domestic and international law.

Attorney General Eric Holder is now visiting the facility to help design a strategy for closing it. In January, President Obama issued an executive order which requires the closure of the detention center within one year. It is unclear where the government will detain individuals once it closes the facility and whether, if prosecuted, they will receive trials in federal courts for alleged criminal activity.

Both Holder and Solicitor General Elena Kagan, however, have insisted that the government can indefinitely detain Al Qaeda members. The Department of Justice also agrees with the Bush administration's position that the reasoning of a 2008 Supreme Court ruling that allows Guantanamo Bay detainees to contest their detention before a federal court does not apply to the Bagram military base in Afghanistan because it is in the "theater of war" and because presenting detainees before a federal court would be infeasible.

Together, these two arguments could justify a policy of indefinite detention of terrorism suspects at Bagram, even as the government closes the maligned Guantanamo Bay facility. It remains unclear, however, whether the Obama administration will actually replicate Bush's policies by shifting the policy of prolonged detention to Afghanistan and away from Guantanamo Bay. Nevertheless, his administration has certainly embraced legal positions that lay the foundation for the continuation of these practices, which generated very passionate criticism from the Left during Bush's presidency.

Two Important Terrorism Updates...But You've Heard Them Before

FIRST
Today, the Obama administration decided to maintain the Bush adminstration's legal position, which asserts that individuals detained at the Bagram Air Force Base near Kabul, Afghanistan do not have a right to seek judicial review of their detention. The Department of Justice argues that, unlike Guantanamo Bay, the base is located in the "theater of war" and this makes judicial review impracticable." Also, the government argues that the Bagram detainees are not entitled to habeas corpus because they are subject to the Military Commissions Act of 2006 -- a statute that Obama denounced.

This military base is not subject to Obama's executive orders which require the review and subsequent closure of Guantanamo Bay. Also, the facility is not a longterm CIA prison which the executive orders also require the government to shutter. Presumably, the government can indefinitely detain individuals at Bagram -- rather than Guantanamo Bay -- without judicial review. Solicitor General Elena Kagan and Attorney General Eric Holder essentially validated this position when they endorsed indefinite detention of terrorism suspects during their confirmation hearings.

SECOND
Obama's executive orders create a task force to study Guantanamo Bay and then subsequently to close it. Today, the Pentagon, responding to a request by President Obama, released an 85-page report which concludes that the maligned facility complies with the Geneva Convention. During the Bush administration, many individuals in the human rights community passionately disputed this position.

While the study finds that the facility complies with international law, it concludes that some of the more dangerous individuals should now receive play time:

The report recommended some changes, including an increase in group recreation for some of the camp's more dangerous or less compliant prisoners, according to a government official familiar with the study. The report also suggested allowing those prisoners to gather in groups of three or more, said the official, who spoke on condition of anonymity because the report has not officially been released.

FINAL WORD
I have written many articles which track the similarities between Bush's and Obama's anti-terrorism policies. For the record, I do not necessarily disagree with some of these practices. For example, I have argued that the government should probably receive wide latitude to invoke the state secrets privilege and that courts should defer to the government's conclusion that a potential item of evidence qualifies for the privilege.

Also, asserting executive authority to do a particular act, does not mandate the use of such power. So, even if the government believes it can detain terrorism suspects indefinitely, this does not mean that it will.

My purpose for engaging this subject arises from my belief that the Left must hold consistent positions and that it must rethink the uncritical approach it took with respect to Obama during the Democratic primaries and the general-election campaign. If McCain (or probably even Clinton) had won the election and began validating Bush's policies, my fellow liberals would condemn him as Bush III.

In order for our arguments to have legitimacy, we must remain consistent or explain why we shift. If progressives now believe that they overreached in condemning Bush, they should make this clear. If progressives simply wanted to drum Republicans out of power, they have made a mockery of the very values they claim to embrace. Criticism and consistency, rather than partisan defense of "our" candidate, can permit greater accountability. Silence and acquiescence do not. I hope I am not the lone progressive who sees this. Ok - that was a melodramatic ending. And for the record, outside of Ron Paul, I have not seen many conservatives criticize other conservatives for not taking Bush to task on his extravagant fiscal policies.