Dissenting Justice has previously reported on the various ways in which the Obama administration has continued policies of the Bush administration, including indefinite detention, that liberals vocally criticized. This does not make Obama a bad president; instead, it should convince liberals not to believe everything that politicians promise while campaigning -- even if that politician is more appealing than others.
Showing posts with label indefinite detention. Show all posts
Showing posts with label indefinite detention. Show all posts
Tuesday, March 8, 2011
Obama Approves Indefinite Detention For Guantanamo Bay Detainees
Obama has signed an executive order that approves indefinite detention for Guantanamo Bay detainees. Although Obama campaigned on promises to close the facility and to end indefinite detention, the executive order he signed authorizes the opposite.
Monday, August 24, 2009
Obama Administration Takes Same Position on Rendition As Bush Administration
Earlier this year, in response to an article in the LA Times, I criticized liberals who defended the Obama administration's plans to utilize rendition. Rendition, as practiced by the CIA, involves the transfer of a "suspect" from one country to another without the judicial or administrative oversight normally associated with extradition. Under rendition, individuals are usually snatched without warning and without access to counsel.
During the Bush presidency, many civil libertarians criticized rendition on four grounds:
Yes, We Will . . . Use Rendition
On Monday, a member of the Obama administration (speaking anonymously) informed the New York Times that Obama would continue the practice of rendition, but that it would no longer operate as a method of outsourcing torture or detaining individuals indefinitely. Furthermore, the official reported that the Obama administration would use diplomatic means to prevent the torture of individuals subject to rendition. Earlier this year, CIA Director Leon Panetta also said that rendition would continue during the Obama administration.
Remarkably, Obama's proposed policy is identical to Bush's. Bush denied sending individuals to torture and to black cells. But Bush certainly snatched individuals without allowing them to consult with counsel or to challenge their removal before a judge or administrative agency. Furthermore, the Bush administration said that it would utilize diplomatic means to make sure that individuals subject to rendition did not face torture.
Human rights groups have criticized all of the four major aspects of rendition. They have also condemned as ineffective the use of diplomacy to prevent torture. Human rights advocates argue that because torture occurs "behind closed doors," diplomatic efforts cannot prevent it.
It has become increasingly clear that the Obama administration will continue several practices related to rendition that the human rights community assailed during the Bush administration. In addition, Solicitor General Elena Kagan and Attorney General Eric Holder have already defended the use of indefinite detention under conditions that do not involve a "theater of war." If the government applies this theory to individuals subject to rendition, then the remaining distinctions between Bush's policy and Obama's policy would evaporate.
Although some human rights groups, including the ACLU and the Center for Constitutional Rights, have criticized Obama regarding rendition, the outcry is minimal compared with the protests over rendition during the Bush years. Of course, Obama's rendition program has not substantially begun. The "first" case was only recently documented.
For earlier articles related to rendition on Dissenting Justice, see:
Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?
"Extraordinary Rendition" Remains Under Obama Administration
Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition
Rendition, Secrecy and Torture: Inseparable?
Obama's "Interesting" Comments About Rendition
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
Obama's "Interesting" Comments About Rendition
During the Bush presidency, many civil libertarians criticized rendition on four grounds:
1. Rendered individuals were transferred without the ability to contest the transfer before a judge; 2. Rendered individuals could not consult an attorney prior to transfer (or even after transfer); 3. Rendered individuals were often rendered for the purpose of torture - or this was the inevitable consequence of their transfer; and 4. Rendered individuals were often "disappeared" and confined in secret CIA prisons.But after the LA Times article reported that the Obama administration would continue the practice of rendition, many liberal commentators blasted the article and attempted to distinguish Obama's and Bush's rendition. Obama, they argued, would not render individuals to torture or permanent detention. Bush, however, sent people away for torture and indefinite detention.
Yes, We Will . . . Use Rendition
On Monday, a member of the Obama administration (speaking anonymously) informed the New York Times that Obama would continue the practice of rendition, but that it would no longer operate as a method of outsourcing torture or detaining individuals indefinitely. Furthermore, the official reported that the Obama administration would use diplomatic means to prevent the torture of individuals subject to rendition. Earlier this year, CIA Director Leon Panetta also said that rendition would continue during the Obama administration.
Remarkably, Obama's proposed policy is identical to Bush's. Bush denied sending individuals to torture and to black cells. But Bush certainly snatched individuals without allowing them to consult with counsel or to challenge their removal before a judge or administrative agency. Furthermore, the Bush administration said that it would utilize diplomatic means to make sure that individuals subject to rendition did not face torture.
Human rights groups have criticized all of the four major aspects of rendition. They have also condemned as ineffective the use of diplomacy to prevent torture. Human rights advocates argue that because torture occurs "behind closed doors," diplomatic efforts cannot prevent it.
It has become increasingly clear that the Obama administration will continue several practices related to rendition that the human rights community assailed during the Bush administration. In addition, Solicitor General Elena Kagan and Attorney General Eric Holder have already defended the use of indefinite detention under conditions that do not involve a "theater of war." If the government applies this theory to individuals subject to rendition, then the remaining distinctions between Bush's policy and Obama's policy would evaporate.
Although some human rights groups, including the ACLU and the Center for Constitutional Rights, have criticized Obama regarding rendition, the outcry is minimal compared with the protests over rendition during the Bush years. Of course, Obama's rendition program has not substantially begun. The "first" case was only recently documented.
For earlier articles related to rendition on Dissenting Justice, see:
Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?
"Extraordinary Rendition" Remains Under Obama Administration
Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition
Rendition, Secrecy and Torture: Inseparable?
Obama's "Interesting" Comments About Rendition
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
Obama's "Interesting" Comments About Rendition
Saturday, June 27, 2009
Indefinite Detention By Executive Order: Another Looming Disappointment for the Left?
In many essays on this blog, I have analyzed national security policies of the Obama administration that conflict with Obama's campaign promises. In most instances, these policies also replicate practices of the Bush administration that received vehement condemnation from the Left. One of those policies involves the practice of indefinite detention.
Bush's practice of detaining individuals without charges or a trial received passionate criticism from the Left. Obama also condemned this practice during his presidential campaign. But after Obama became president, members of his administration soon indicated that he would not stray too far from Bush on this issue.
Kinder, Gentler Indefinite Detention Is Still Unlawful
Recently, Obama himself confirmed that his administration would detain some suspected terrorists without prosecuting them in federal courts or in a military tribunal. Obama described the individuals as persons who "cannot be prosecuted for past crimes. . .but who nonetheless pose a threat to the security of the United States." Obama, however, stated that he would collaborate with Congress to create a system that utilized judicial and Congressional oversight, required periodic review, and that did not depend upon the will of one person:
Furthermore, Bush's practice of indefinite detention rightfully outraged liberals. Obama's stance is equally outrageous, however, and after initial reluctance, many progressive supporters of Obama have finally started criticizing the president's national security policies.
Nuance: Working With Congress Does Not Mean Passing Legislation
Recent reports indicate that Obama might claim detention authority by executive order -- rather than purusing authorization by statute. Sources within the Obama administration, however, say that using an executive order to outline detention policy would not betray the president's promise to "work with Congress to develop an appropriate legal regime." According to the New York Times, these officials explain that: "[W]orking with Congress [does] not necessarily mean passing legislation. . .[and that] Obama. . .would consult with lawmakers even if he decided to enact his system through executive order."
But implementing a detention policy by executive order alone would affirm Bush's assertion that the president has the power of indefinite detention. Earlier this year, the Obama administration strained to distinguish its own stance on this issue from Bush's by stating that the president would detain individuals pursuant to legislation authorizing the war against Al Qaeda and the international law of war. As I previously argued, however, the notion that this "shift" significantly retreats from the Bush administration's practices is vastly overstated (if not completely wrong). Although reports suggest the Obama administration might utilize an executive order to avoid wrangling with Congress over the details, this would tacitly admit that the president does not need authorization from Congress, and it would also replicate Bush's view of strong executive power in this setting.
* For excellent coverage of this issue, see Glenn Greenwald's column on Salon.com.
Bush's practice of detaining individuals without charges or a trial received passionate criticism from the Left. Obama also condemned this practice during his presidential campaign. But after Obama became president, members of his administration soon indicated that he would not stray too far from Bush on this issue.
Kinder, Gentler Indefinite Detention Is Still Unlawful
Recently, Obama himself confirmed that his administration would detain some suspected terrorists without prosecuting them in federal courts or in a military tribunal. Obama described the individuals as persons who "cannot be prosecuted for past crimes. . .but who nonetheless pose a threat to the security of the United States." Obama, however, stated that he would collaborate with Congress to create a system that utilized judicial and Congressional oversight, required periodic review, and that did not depend upon the will of one person:
We must have clear, defensible and lawful standards for those who fall in 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. . . .Although Obama's statement suggests a strong commitment to the rule of law, his argument that the United States can simply detain people who have not committed a criminal act is an anathema to the notion of due process. And simply saying that the detention will prevent them from "carrying out an act of war" does not prove that they ever engaged in or will engage in warfare against the United States. Certainly, many law enforcement officers would like the authority to detain individuals they believe might one day possibly commit some crime. Due process, however, does not allow this to occur.
In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
Furthermore, Bush's practice of indefinite detention rightfully outraged liberals. Obama's stance is equally outrageous, however, and after initial reluctance, many progressive supporters of Obama have finally started criticizing the president's national security policies.
Nuance: Working With Congress Does Not Mean Passing Legislation
Recent reports indicate that Obama might claim detention authority by executive order -- rather than purusing authorization by statute. Sources within the Obama administration, however, say that using an executive order to outline detention policy would not betray the president's promise to "work with Congress to develop an appropriate legal regime." According to the New York Times, these officials explain that: "[W]orking with Congress [does] not necessarily mean passing legislation. . .[and that] Obama. . .would consult with lawmakers even if he decided to enact his system through executive order."
But implementing a detention policy by executive order alone would affirm Bush's assertion that the president has the power of indefinite detention. Earlier this year, the Obama administration strained to distinguish its own stance on this issue from Bush's by stating that the president would detain individuals pursuant to legislation authorizing the war against Al Qaeda and the international law of war. As I previously argued, however, the notion that this "shift" significantly retreats from the Bush administration's practices is vastly overstated (if not completely wrong). Although reports suggest the Obama administration might utilize an executive order to avoid wrangling with Congress over the details, this would tacitly admit that the president does not need authorization from Congress, and it would also replicate Bush's view of strong executive power in this setting.
* For excellent coverage of this issue, see Glenn Greenwald's column on Salon.com.
* TalkLeft has also addressed the issue: Obama Considering Unconstitutional Imposition Of Preventive Detention Policy
* For prior articles related to indefinite detention on Dissenting Justice, see:
Obama on National Security: I Am Doing the Right Things; I Have Not Broken Campaign Promises
When Will Obama Close the Guantanamo Bay Prison?
Et Tu, Olbermann? Some Liberals Finally Realize That for Certain Issues, "Change" Actually Means "More of the Same"
Change Alert: Indefinite Detention in the USA -- Not Guantanamo Bay
So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects
Thursday, May 21, 2009
Obama on National Security: I Am Doing the Right Things; I Have Not Broken Campaign Promises
[Update: Even the mainstream media have begun to make similar arguments that I make in this essay regarding the Supreme Court and Obama's national security decisions. Also, thanks to TalkLeft for initiating a thread on the issue (and graciously linking to this post).]
Obama made an interesting speech today. To summarize, Obama basically said he is doing the right things regarding national security, despite the difficulties, and that he has not abandoned any of his campaign promises. Nuance is key to understanding these promises, I suppose. For those of you who do not trust my sarcastic summary, here is the long version of the President's speech: Obama Speech Transcript.
More of the Same?
Throughout the Democratic primaries, the progressive wing of the party said that Obama was extraordinarily liberal, while Hillary Clinton offered "more of the same" (as Bush). But when Obama embraces "preventive detention," this sounds the same as Bush's maligned practice of "indefinite detention." Obama wants to detain dangerous individuals consistent with the "rule of law," but Bush did the same thing, although he called detainees "enemy combatants." "Enemy combatants" sound "dangerous" to me.
Obama has opted to utilize "kinder, gentler" military tribunals, but, like the Bush version, they will operate under a watered-down version of due process in order to secure easier convictions. As a compromise, Obama could have chosen to follow the stricter procedures contained in the Uniform Code of Military Justice -- which govern the prosecution of military personnel for crimes ranging from sodomy to treason. Instead, he has chosen to "stay the course" with slight modifications.
Obama reports that he will reform Bush's tribunals by giving defendants greater freedom to pick their own lawyers and by requiring the government to demonstrate the reliability of hearsay evidence. These reforms, however, will unlikely represent a substantial departure from practices during the Bush administration. Military courts receive so much criticism in part because one entity serves as police, prosecutor, judge, and jury. So, even if Obama changes the hearsay rule, the military (as judge) will still decide whether the military (as prosecutor) can introduce hearsay evidence collected by the military or the CIA (as police officer) for use in a military proceeding (a criminal prosecution). Focusing only on the promise to reform the hearsay rule and not the process for evaluating its reliability is a mere distraction.
Supreme Court Implications
Civil liberties organizations have already promised to file lawsuits challenging the military courts. In two different rulings, the Supreme Court invalidated the procedures used in Bush's military tribunals. Potentially, the Court could rule against Obama's courts, especially if he chooses a "true" liberal to replace Justice Souter.
I suspect that for this and other reasons, Obama will aim for the middle and for familiarity. This standard works against Judge Sonia Sotomayor (whom people have labeled as a leftist without reading her opinions) and Professor Pam Karlan (who is a bona fide leftist).
Elena Kagan, however, is probably the presumptive front runner. She is the most moderate of the individuals on the reported short list. More importantly, Kagan has already embraced the expansive notion of indefinite (sorry: "preventive") detention that Obama says he will utilize. Furthermore, she is a known quantity to President Obama, and he undoubtedly asked her many questions about law and national security before selecting her to become the Solicitor General. Also, after Souter announced his retirement, several leading Democrats floated a script that discouraged the selection of a sitting judge. Kagan is the the most popular front runner who is not a judge. Although this analysis sounds logical, I will decline to make a formal prediction. There are clearly many factors at stake.
Final Thoughts
Ironically, Obama, who ran as the antiwar candidate, is now the "war" president. He is the commander-in-chief in two ongoing offenses, including one in which he has authorized a "surge." As proof that his antiwar rhetoric is a distant memory, Obama has delivered a speech to justify his Bush-esque national security policy against liberal (and Cheney's) criticism in a building that houses the Declaration of Independence and the Bill of Rights, which rank among the most enduring of American symbols. This is a long road from the flag pin controversy.
Finally, I will leave readers with some "oldies but goodies" from Dissenting Justice. These articles argue that the Left set itself up for disappointment with its irrational exuberance surrounding Obama. He is, as Reverend Wright accurately stated during the campaign, a politician. All presidents before him were politicians as well. I was stunned that liberals refused to see this. So, to the formerly effusive and uncritical Left: I told you so. To everyone else, enjoy the articles.
Latest analysis on Dissenting Justice:
Cutting Through the Rhetoric Regarding Hate Crimes Legislation
Related Readings on Dissenting Justice:
* 2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But Melodrama
* Progressives Awaken from Obama-Vegetative State
* Head Explosion at The Nation: Left "Duped" by Its "Own Wishful Thinking"
* From the "Duh" Files: Effusive Political Adoration Does Not Lead to Social Change
* Warning to Progressives: NYT Proclaims Obama Will Govern From Center-Right
* Leftists Finally Realize Obama Is a Moderate; Huffington Post Suddenly Embraces Clinton and Political Center
* The "Left" Responds to Obama's "Centrist" Foreign Policy Team
* Reality Check: Obama's Election Victory Does Not Mean That Era of Race-Based Identity Politics Has Died
* Back Down Memory Lane: A Review of Anti-Clinton Rhetoric by "Progressives" on Daily Kos, Huffington Post, and AlterNet
* Don't Ask, Don't Tell, Don't Hold Your Breath
Obama made an interesting speech today. To summarize, Obama basically said he is doing the right things regarding national security, despite the difficulties, and that he has not abandoned any of his campaign promises. Nuance is key to understanding these promises, I suppose. For those of you who do not trust my sarcastic summary, here is the long version of the President's speech: Obama Speech Transcript.
More of the Same?
Throughout the Democratic primaries, the progressive wing of the party said that Obama was extraordinarily liberal, while Hillary Clinton offered "more of the same" (as Bush). But when Obama embraces "preventive detention," this sounds the same as Bush's maligned practice of "indefinite detention." Obama wants to detain dangerous individuals consistent with the "rule of law," but Bush did the same thing, although he called detainees "enemy combatants." "Enemy combatants" sound "dangerous" to me.
Obama has opted to utilize "kinder, gentler" military tribunals, but, like the Bush version, they will operate under a watered-down version of due process in order to secure easier convictions. As a compromise, Obama could have chosen to follow the stricter procedures contained in the Uniform Code of Military Justice -- which govern the prosecution of military personnel for crimes ranging from sodomy to treason. Instead, he has chosen to "stay the course" with slight modifications.
Obama reports that he will reform Bush's tribunals by giving defendants greater freedom to pick their own lawyers and by requiring the government to demonstrate the reliability of hearsay evidence. These reforms, however, will unlikely represent a substantial departure from practices during the Bush administration. Military courts receive so much criticism in part because one entity serves as police, prosecutor, judge, and jury. So, even if Obama changes the hearsay rule, the military (as judge) will still decide whether the military (as prosecutor) can introduce hearsay evidence collected by the military or the CIA (as police officer) for use in a military proceeding (a criminal prosecution). Focusing only on the promise to reform the hearsay rule and not the process for evaluating its reliability is a mere distraction.
Supreme Court Implications
Civil liberties organizations have already promised to file lawsuits challenging the military courts. In two different rulings, the Supreme Court invalidated the procedures used in Bush's military tribunals. Potentially, the Court could rule against Obama's courts, especially if he chooses a "true" liberal to replace Justice Souter.
I suspect that for this and other reasons, Obama will aim for the middle and for familiarity. This standard works against Judge Sonia Sotomayor (whom people have labeled as a leftist without reading her opinions) and Professor Pam Karlan (who is a bona fide leftist).
Elena Kagan, however, is probably the presumptive front runner. She is the most moderate of the individuals on the reported short list. More importantly, Kagan has already embraced the expansive notion of indefinite (sorry: "preventive") detention that Obama says he will utilize. Furthermore, she is a known quantity to President Obama, and he undoubtedly asked her many questions about law and national security before selecting her to become the Solicitor General. Also, after Souter announced his retirement, several leading Democrats floated a script that discouraged the selection of a sitting judge. Kagan is the the most popular front runner who is not a judge. Although this analysis sounds logical, I will decline to make a formal prediction. There are clearly many factors at stake.
Final Thoughts
Ironically, Obama, who ran as the antiwar candidate, is now the "war" president. He is the commander-in-chief in two ongoing offenses, including one in which he has authorized a "surge." As proof that his antiwar rhetoric is a distant memory, Obama has delivered a speech to justify his Bush-esque national security policy against liberal (and Cheney's) criticism in a building that houses the Declaration of Independence and the Bill of Rights, which rank among the most enduring of American symbols. This is a long road from the flag pin controversy.
Finally, I will leave readers with some "oldies but goodies" from Dissenting Justice. These articles argue that the Left set itself up for disappointment with its irrational exuberance surrounding Obama. He is, as Reverend Wright accurately stated during the campaign, a politician. All presidents before him were politicians as well. I was stunned that liberals refused to see this. So, to the formerly effusive and uncritical Left: I told you so. To everyone else, enjoy the articles.
Latest analysis on Dissenting Justice:
Cutting Through the Rhetoric Regarding Hate Crimes Legislation
Related Readings on Dissenting Justice:
* 2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But Melodrama
* Progressives Awaken from Obama-Vegetative State
* Head Explosion at The Nation: Left "Duped" by Its "Own Wishful Thinking"
* From the "Duh" Files: Effusive Political Adoration Does Not Lead to Social Change
* Warning to Progressives: NYT Proclaims Obama Will Govern From Center-Right
* Leftists Finally Realize Obama Is a Moderate; Huffington Post Suddenly Embraces Clinton and Political Center
* The "Left" Responds to Obama's "Centrist" Foreign Policy Team
* Reality Check: Obama's Election Victory Does Not Mean That Era of Race-Based Identity Politics Has Died
* Back Down Memory Lane: A Review of Anti-Clinton Rhetoric by "Progressives" on Daily Kos, Huffington Post, and AlterNet
* Don't Ask, Don't Tell, Don't Hold Your Breath
Saturday, May 16, 2009
When Will Obama Close the Guantanamo Bay Prison?
Now that the Obama administration has confirmed that it will retool and revive that controversial military tribunals to prosecute terrorism suspects, one glaring question remains: When will Obama close the Guantanamo Bay prison? During his first week in office, President Obama issued an executive order that directs a team of experts to devise a plan to close to prison by January 2010. The revival of the military courts, however, complicates this issue.
Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.
Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.
Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.
Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.
No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.
Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.
Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.
Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.
In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.
Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.
Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."
Many Legal Issues
Even though Obama's January executive orders included a carefully worded loophole that contemplated the possible use of military courts, his decision to use the tribunals has angered civil libertarians. Most of the progressive voters in the Democratic Party lambasted Hillary Clinton, whom they believed offered "more of the same," and they constructed Obama as a leftist dream come true.
Although progressives exaggerated Obama's leftist credentials, he offered enough teasers to win their trust. For example, Obama's campaign disparaged the use of military courts and repeatedly praised the ability of the ordinary federal courts to prosecute terrorism suspects. As a good lawyer, Obama left room for the possible use of reformed military courts, but this qualification certainly was not the loudest element of his campaign.
Thus far, Obama's proposed reform of the military courts does not seem to make dramatic changes over the previous system used by Bush. Although Obama says he will limit the use of hearsay evidence to situations where the court concludes it is "reliable," Bush used the same standard. Under Bush's rules, however, the burden rested with the defendant to disprove the reliability of hearsay evidence; Obama's reform would place the burden on the government. Nevertheless, if the military courts use a low standard to evaluate the reliability of hearsay evidence, then this "reform" might not differ much at all from the old system.
Obama has also stated that the new rules will not permit the use of evidence collected through torture and other abusive methods. According to an article published by the Associated Press, however, Bush never relied upon tainted evidence to prosecute individuals, even though his rules authorized him to do so.
No Prosecutions in the Near Future
Regardless of the ultimate content of Obama's new procedural rules, the military courts will probably not become operational in the near future. In fact, Obama will soon order an additional 120-day freeze on proceedings in the military tribunals. The original stay will expire on May 20.
Before any prosecution can occur, the President must spell out the reforms he wishes to make. Also, Congress needs to pass legislation implementing the changes. Furthermore, courts must preside over the inevitable litigation challenging the constitutionality of the Obama's military tribunals. These factors will likely result in a considerable delay in the use of the military tribunals.
Possible Impact on Guantanamo Bay Closure
While the legal process concerning the military tribunals takes place, the deadline on Obama's promise to close the Guantanamo Bay prison could expire. Although the president could extend the time period for closing the facility, he might also consider abandoning the closure plan altogether.
Both Obama and Secretary of Defense Robert Gates have stated that some detainees that the government deems "dangerous" are unsuitable for transfer to other countries and are too risky for prosecution (due to insufficient evidence). An overlooked provision (Section 4(c)4) of Obama's executive order regarding Guantanamo Bay anticipates this category of detainees.
In March, the Washington Post reported that officials in the Department of Justice were considering whether to "create a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." At the time, this concept seemed vague, but recent media reports indicate that the government will likely seek to detain these individuals indefinitely, adhering to another one of Bush's most criticized policies. Furthermore, the revival of the military tribunals means that the government has decided not to limit prosecution to "regular courts," as the Washington Post article suggests.
Members of Congress, however, do not want terrorism suspects prosecuted or detained within the United States. If Congress wins this battle, then Obama must continue to hold the detainees at Guantanamo Bay or at another United States-controlled facility located outside of the country.
Although Obama has promised to close the Guantanamo Bay detention center, he could later revisit this decision. Earlier this year, the Department of the Navy completed a study, ordered by Obama, which found that the Guantanamo Bay prison complies with the Geneva Conventions. Although many civil liberties lawyers dispute this finding, Attorney General Holder subsequently visited the facility and gave it a favorable review as well. Due to the constraints that Obama now faces, a decision to keep the Guantanamo Bay prison open beyond January 2010 (or even longer) does not seem completely "off the table."
Thursday, May 14, 2009
51 House Democrats Vote Against Obama's Supplemental War Funding Request
RELATED COVERAGE:
They're Baaack. . . .
Kinder, Gentler Military Tribunals? You Betcha. . . .
___________________________________________________________________
Fifty-one House Democrats voted against President Obama's request for additional money to fund the wars in Afghanistan and Iraq. The supplemental spending measure, H.R. 2346, allocates $81.3 billion for war-related expenditures and $15.4 billion for various other projects, including military construction and flu preparedness. Despite opposition among Democrats, the measure passed by a vote of 368-60. Nine Republicans also voted against the spending bill.
Many members of Congress have expressed concern that Obama's supplemental spending requests could fund the transfer of Guantanamo Bay detainees to the United States. According to recent news reports, the Obama administration is considering transferring certain Guantanamo Bay detainees to the United States for detention.
In late April, Secretary of Defense Robert Gates stated that between 50 and 100 detainees were too dangerous to release and too risky to prosecute (due to lack of admissible evidence). Rather than releasing the detainees or risking an acquittal (which would lead to a release), the government could possibly detain the individuals indefinitely, a move that would likely cause more tension between Obama and his liberal base.
In light of political opposition to the transfer of suspected terrorists to the United States,the House measure contains an amendment that precludes the use of the allocated funds to facilitate the relocation of inmates from Guantanamo Bay to points in the United States unless the President first submits a report to Congress detailing the national security impact of locating the transferees in the United States. The measure also requires the President to submit a general report on the disposition of each detainee later this year.
Roll Call
The Democratic "nays" include: John Conyers, Barney Frank (7 out of the 10 Massachusetts House Democrats voted against the measure), Luis Gutierrez, Dennis Kucinich, Barbara Lee, John Lewis, Zoe Lofgren, and Maxine Waters.
They're Baaack. . . .
Kinder, Gentler Military Tribunals? You Betcha. . . .
___________________________________________________________________
Fifty-one House Democrats voted against President Obama's request for additional money to fund the wars in Afghanistan and Iraq. The supplemental spending measure, H.R. 2346, allocates $81.3 billion for war-related expenditures and $15.4 billion for various other projects, including military construction and flu preparedness. Despite opposition among Democrats, the measure passed by a vote of 368-60. Nine Republicans also voted against the spending bill.
Many members of Congress have expressed concern that Obama's supplemental spending requests could fund the transfer of Guantanamo Bay detainees to the United States. According to recent news reports, the Obama administration is considering transferring certain Guantanamo Bay detainees to the United States for detention.
In late April, Secretary of Defense Robert Gates stated that between 50 and 100 detainees were too dangerous to release and too risky to prosecute (due to lack of admissible evidence). Rather than releasing the detainees or risking an acquittal (which would lead to a release), the government could possibly detain the individuals indefinitely, a move that would likely cause more tension between Obama and his liberal base.
In light of political opposition to the transfer of suspected terrorists to the United States,the House measure contains an amendment that precludes the use of the allocated funds to facilitate the relocation of inmates from Guantanamo Bay to points in the United States unless the President first submits a report to Congress detailing the national security impact of locating the transferees in the United States. The measure also requires the President to submit a general report on the disposition of each detainee later this year.
Roll Call
The Democratic "nays" include: John Conyers, Barney Frank (7 out of the 10 Massachusetts House Democrats voted against the measure), Luis Gutierrez, Dennis Kucinich, Barbara Lee, John Lewis, Zoe Lofgren, and Maxine Waters.
Wednesday, May 13, 2009
Change Alert: Indefinite Detention in the USA -- Not Guantanamo Bay
In late April, Secretary of Defense Robert Gates announced during a Senate briefing that there are between 50 and 100 detainees at Guantanamo Bay whom the government would not transfer to other countries or prosecute in civilian or military tribunals. Last week, major media outlets, confirming previous "chatter," reported that the Obama administration would retool and revive the highly disparaged military courts.
And just when it seemed that all of these changes in anti-terrorism policy were too good to be true, today's Wall Street Journal reports that the Obama administration might indefinitely detain some Guantanamo Bay inmates in the United States following the closure of the facility. Presumably, the indefinitely detained individuals would include the 50-100 people Gates described in late April.
The Senate, however, has already launched an effort to block the potential policy. Today, the Senate will consider legislation that would give Obama emergency money he has requested to fund the closure of the Guantanamo Bay prison. The legislation, however, would grant the funds only if the President agrees not to transfer any suspected terrorists to locations within the United States.
If the Senate measure fails, then the Obama administration could potentially implement the indefinite detention policy. According to the Wall Street Journal article, possible plans include indefinite detentions within the United States authorized by a newly created "National Security Court."
The use of a special National Security Court to determine whether the government could detain suspects would go against Obama's campaign assertion that these individuals should have full habeas corpus rights. The idea of indefinite detention contradicts his campaign rhetoric that condemned this practice.
Dissenting Justice has frequently commented on the Obama administration's commitment to indefinite detention, despite the Left's vehement opposition to the practice. Even the mainstream media has begun reporting on how Obama's policy choices either anger the Left or defy his campaign promises. Two articles in today's Washington Post, for example, examine how Obama's recent flip-flop on the release of detainee abuse photos might impact his relationship with his liberal base.
Concluding Questions
If Congress blocks the transfer of Guantanamo Bay detainees to the United States, will Obama stop the process of closing the facility? Was this the plan all along? How does the indefinite detention of terrorism suspects in the United States, as opposed to Guantanamo Bay, represent an improvement over the Bush administration's policies?
Recent Articles on Dissenting Justice:
Earth to GOP: Branding Democrats as "Socialists" Is a Stupid and Futile Move
President Obama: Less Talk, More Action on GLBT Rights Issues!
Promises, Promises. . .
And just when it seemed that all of these changes in anti-terrorism policy were too good to be true, today's Wall Street Journal reports that the Obama administration might indefinitely detain some Guantanamo Bay inmates in the United States following the closure of the facility. Presumably, the indefinitely detained individuals would include the 50-100 people Gates described in late April.
The Senate, however, has already launched an effort to block the potential policy. Today, the Senate will consider legislation that would give Obama emergency money he has requested to fund the closure of the Guantanamo Bay prison. The legislation, however, would grant the funds only if the President agrees not to transfer any suspected terrorists to locations within the United States.
If the Senate measure fails, then the Obama administration could potentially implement the indefinite detention policy. According to the Wall Street Journal article, possible plans include indefinite detentions within the United States authorized by a newly created "National Security Court."
The use of a special National Security Court to determine whether the government could detain suspects would go against Obama's campaign assertion that these individuals should have full habeas corpus rights. The idea of indefinite detention contradicts his campaign rhetoric that condemned this practice.
Dissenting Justice has frequently commented on the Obama administration's commitment to indefinite detention, despite the Left's vehement opposition to the practice. Even the mainstream media has begun reporting on how Obama's policy choices either anger the Left or defy his campaign promises. Two articles in today's Washington Post, for example, examine how Obama's recent flip-flop on the release of detainee abuse photos might impact his relationship with his liberal base.
Concluding Questions
If Congress blocks the transfer of Guantanamo Bay detainees to the United States, will Obama stop the process of closing the facility? Was this the plan all along? How does the indefinite detention of terrorism suspects in the United States, as opposed to Guantanamo Bay, represent an improvement over the Bush administration's policies?
Recent Articles on Dissenting Justice:
Earth to GOP: Branding Democrats as "Socialists" Is a Stupid and Futile Move
President Obama: Less Talk, More Action on GLBT Rights Issues!
Promises, Promises. . .
Saturday, May 2, 2009
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.
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.
Friday, March 13, 2009
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:
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.
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."SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:
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."
First, the new version requires proof of “substantial” support of Taliban orThe Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:
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.
[A]dopted almost the same standard the Bush administration used to detain peopleThis sounds like the "extraordinary rendition"/"rendition" debate.
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.
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.
Tuesday, March 10, 2009
Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?
[Check out this "just added" essay: Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Georgia Busts Assisted-Suicide Ring. . . ]
A United Nations human rights official unambiguously stated that "change" in the United States will not alter the organization's scrutiny of U.S. antiterrrorism practices. The statement came as UN investigators announced the start of a probe into CIA rendition flights and secret detention.
UN Official Promises Not To Let New Administration "Off the Hook"
Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, made the following statement concerning human rights enforcement in the Obama administration: "We will not let the United States off the hook simply because of the change in administration . . . . It is certainly too early to say that rendition will have stopped. . . ."
With respect to President Obama's executive orders closing CIA prisons and mandating that interrogators comply with antitorture laws, Scheinin was guardedly optimistic: "We can at least hope this is a real change that will put an end to the most horrendous forms of extraordinary renditions. . . ."
Obama and Rendition
The subject of rendition led to international condemnation of the Bush administration. This topic, however, also led to debate concerning the Obama administration after the L.A. Times published a story which reported that Obama would continue the practice of rendition -- despite having ordered the end of torture and the closure of CIA prisons.
Many liberals rushed to defend the government through formalistic arguments, which parsed Obama's "rendition" and Bush's "extraordinary rendition." Although the two concepts are in fact distinct, in this particular setting, the differences are more illusory than real.
Critics argued that Bush used extraordinary rendition to abduct individuals and send them to indefinite detention and to torture in other nations. Because Obama's executive orders eliminate these procedures, many liberals portrayed the L.A. Times article as a piece of alarmist sophistry.
Liberal defenders of rendition, however, failed to present a comprehensive picture of the human rights community's critiques of the Bush administration. Certainly, the torture and prolonged detention elements of rendition occupied center stage, but many liberals also contested the lack of judicial or administrative review of the CIA's decision to transfer (really "to abduct") individuals and the lack of access to counsel.
Rendition Versus Extradition
Some liberals seemingly tried to sanitize or at least to diminish the problems associated with "rendition" by linking it to accepted forms of inter-jurisdictional transfers like "extradition." While both of these concepts admittedly involve the involuntary movement of people across state or national boundaries, any effort -- intentional or otherwise -- to equate the CIA's rendition program with ordinary extradition is misguided.
Scheinin's statements on the subject confirm that material differences exist between rendition (extraordinary or otherwise) and extradition. According to Reuters, Scheninin:
I am trying to locate Sheinin's exact quotation. If I find it, I will post it. But Sheinin has made statements preferring extradition to rendition in the past. In a 2007 report on rendition, for example, he concluded that: "[T]he removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights." Here is a link to the International Covenant on Civil and Political Rights.
The 2007 report also expresses grave concern with rendition for the purpose of interrogation or detention (which increases the likelihood of torture); it expresses less concern with "rendition to justice" (i.e., to transfer an individual to stand trial for an alleged crime). During his confirmation hearings, however, Leon Panetta indicated that the U.S. could continue rendition for interrogation and prosecution.
Related Readings on Dissenting Justice:
Obama's "Interesting" Comments About Rendition
Rendition, Secrecy and Torture: Inseparable?
Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
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
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
A United Nations human rights official unambiguously stated that "change" in the United States will not alter the organization's scrutiny of U.S. antiterrrorism practices. The statement came as UN investigators announced the start of a probe into CIA rendition flights and secret detention.
UN Official Promises Not To Let New Administration "Off the Hook"
Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, made the following statement concerning human rights enforcement in the Obama administration: "We will not let the United States off the hook simply because of the change in administration . . . . It is certainly too early to say that rendition will have stopped. . . ."
With respect to President Obama's executive orders closing CIA prisons and mandating that interrogators comply with antitorture laws, Scheinin was guardedly optimistic: "We can at least hope this is a real change that will put an end to the most horrendous forms of extraordinary renditions. . . ."
Obama and Rendition
The subject of rendition led to international condemnation of the Bush administration. This topic, however, also led to debate concerning the Obama administration after the L.A. Times published a story which reported that Obama would continue the practice of rendition -- despite having ordered the end of torture and the closure of CIA prisons.
Many liberals rushed to defend the government through formalistic arguments, which parsed Obama's "rendition" and Bush's "extraordinary rendition." Although the two concepts are in fact distinct, in this particular setting, the differences are more illusory than real.
Critics argued that Bush used extraordinary rendition to abduct individuals and send them to indefinite detention and to torture in other nations. Because Obama's executive orders eliminate these procedures, many liberals portrayed the L.A. Times article as a piece of alarmist sophistry.
Liberal defenders of rendition, however, failed to present a comprehensive picture of the human rights community's critiques of the Bush administration. Certainly, the torture and prolonged detention elements of rendition occupied center stage, but many liberals also contested the lack of judicial or administrative review of the CIA's decision to transfer (really "to abduct") individuals and the lack of access to counsel.
Rendition Versus Extradition
Some liberals seemingly tried to sanitize or at least to diminish the problems associated with "rendition" by linking it to accepted forms of inter-jurisdictional transfers like "extradition." While both of these concepts admittedly involve the involuntary movement of people across state or national boundaries, any effort -- intentional or otherwise -- to equate the CIA's rendition program with ordinary extradition is misguided.
Scheinin's statements on the subject confirm that material differences exist between rendition (extraordinary or otherwise) and extradition. According to Reuters, Scheninin:
Hope[s] the Obama administration's policy would at least mean suspects abducted by U.S. agents are tried in America. But he stressed that instead of nabbing suspects abroad and then trying them on one's home soil, international law says countries should seek extraditions through legal channels.While many individuals have dismissed the due process concerns raised by rendition (whether or not it results in torture or longterm detention), Sheinin's comments (at least as summarized by Reuters) demonstrate that there are international law issues that arise from the CIA abductions - at least when they take place in countries that have an extradition agreement with the United States. Other civil liberties advocates have also criticized using rendition as a substitute for the formalized extradition process (see Marjorie Cohn and Michael Rattner comments).
I am trying to locate Sheinin's exact quotation. If I find it, I will post it. But Sheinin has made statements preferring extradition to rendition in the past. In a 2007 report on rendition, for example, he concluded that: "[T]he removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights." Here is a link to the International Covenant on Civil and Political Rights.
The 2007 report also expresses grave concern with rendition for the purpose of interrogation or detention (which increases the likelihood of torture); it expresses less concern with "rendition to justice" (i.e., to transfer an individual to stand trial for an alleged crime). During his confirmation hearings, however, Leon Panetta indicated that the U.S. could continue rendition for interrogation and prosecution.
Related Readings on Dissenting Justice:
Obama's "Interesting" Comments About Rendition
Rendition, Secrecy and Torture: Inseparable?
Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
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
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
Saturday, March 7, 2009
Obama's "Interesting" Comments About Rendition
President Obama recently completed a 35-minute interview with the New York Times. During the interview, Obama addressed several domestic and foreign policy issues. A very wasteful moment occurred when the interviewer asked Obama if he was a "socialist"? When he said "no," the desperate interviewer asked: "Is there anything wrong with saying yes?"
Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.
Obama on Rendition
During Obama's interview with the New York Times, the following exchange concerning rendition occurred:
I. Obama chided the interviewer for overstating Panetta's position.
Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.
II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.
A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.
III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."
This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.
Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.
Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.
Final Thoughts
The Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.
Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).
Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.
Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.
Obama on Rendition
During Obama's interview with the New York Times, the following exchange concerning rendition occurred:
Q. Leon Panetta has said that we’re going to continue renditions, provided we’re not sending people to countries that torture. Why continue them at all?Analysis
A. Well, I think that you’re giving a slightly more definitive response than Director Panetta provided, but what I’ll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize – could be – because we haven’t made a determination yet, where let’s say we have a well-known Al Qaeda operative, that doesn’t surface very often, appears in a third country, with whom we don’t have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don’t torture, and that we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.
How all that sorts itself out is extremely complicated because it’s not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.
I. Obama chided the interviewer for overstating Panetta's position.
Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.
II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.
A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.
III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."
This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.
Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.
Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.
Final Thoughts
The Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.
Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).
Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.
Sunday, March 1, 2009
No Kicking and Screaming Yet. . .
[Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business" ]
Washington has its traditions just like any other city. But unlike other places, Washington is the home of the second-oldest profession: politics. This makes the city impervious to demands for change -- especially change that strikes at the core of its deal-based political culture. And while the 2008 election promised "change" at all levels, signs of "business as usual" remain abundant.
Mo' Money, Mo' Problems!
Earmarks
Last week, the House passed an omnibus budget that contains billions of dollars in earmarks proposed by lawmakers in both parties. Several members of the Obama administration, including Obama himself, have sponsored earmarks which appear in the proposed budget.
During his presidential campaign, however, Obama routinely condemned earmarks. His opposition to earmarks led to the media's obsession with Alaska's so-called "Bridge to Nowhere," which Democrats said proved that Sarah Palin engaged in double-talk on fiscal conservatism. Recently, after fiscal watchdogs began publicizing the volume of earmarks in the proposed budget, Obama scrubbed his name from a multi-million dollar earmark that previously designated him as a co-sponsor. The earmarks, however, remain in the bill. Members of Obama's staff have defended the inclusion of earmarks in the budget on the grounds that the concern over pork spending was "last year's business."
Lobbyists
Lobbyists are another staple of Washington's political culture. Obama campaigned on a pronounced anti-lobbying theme, and after he was elected, he immediately implemented rules that prohibit former lobbyists who join the government from shaping policy on issues related to their previous work. But Obama immediately ignored his own rules in order to appoint William Lynn as Assistant Secretary of Defense.
He was also presumably set to waive the rule (or at least ignore the spirit behind it) for Tom Daschle, his original pick to head the Department of Health and Human Services. Although Daschle ultimately withdrew from consideration over controversy surrounding unpaid taxes, some critics also complained that he had earned millions of dollars representing and providing advice to insurance companies and that he was a trustee of the Mayo Clinic. Daschle, however, was not formally registered as a "lobbyist."
In addition, as a campaigner, Obama promised transparency and accountability on health care reform, but lobbyists for insurance companies and other groups have held private meetings with Senator Ted Kennedy to discuss the issue before the public debates. According to the L.A. Times:
Improving "Our" Image in the World
Obama's supporters promised that his election would repair the image of the United States in the world community, which, they contend, Bush's militaristic practices and abusive antiterriorism policies severely damaged. A combination of legal strategy, politics and policy considerations, however, have caused Obama to retain many of the same Bush-era practices or legal positions that liberals believe injured the country' reputation. These policies include rendition, blanket usage of the state secrets privilege, the openness to "harsh" interrogation methods "if necessary," support of indefinite detention of Al Qaeda suspects, and the right to bypass federal courts to prosecute certain detainees.
Moving or Closing Guantanamo Bay?
Although Obama promised substantial changes in these areas, to date, the differences relate more to form, rather than substance. For example, although Obama has ordered the closure of the Guantanamo Bay detention center, the Navy has produced a study, at the president's request, which concludes that the facility complies with the Geneva Conventions. Although some human rights advocates condemned the Navy's report, Attorney General Eric Holder subsequently visited the facility and offered favorable reviews as well.
Obama promised to close Guantanamo Bay in response to sharp criticism among domestic and international human rights activists who argued that the Bush administration unlawfully detained captives, denied them access to courts, and subjected them to torture. The Supreme Court concluded that detainees at the facility had a right to judicial review of their detention and, subsequently, that procedural deficiencies in military commissions authorized by Congress made the commissions an impermissible alternative to federal courts.
Although the President has ordered the closure of the facility, the government will likely send many present and future detainees to Bagram Air Force Base in Afghanistan (and to other locations). The Obama administration, following Bush's lead, contends that detainees at Bagram do not qualify for access to the federal courts. Also, Holder and Solicitor General Elena Kagan stated during their confirmation hearings that the United States can indefinitely detain suspected members of Al Qaeda (whether or not they were caught on the battlefield, according to Kagan). If the President acts upon the broad authority his staff claims he possesses, Bagram could easily become the functional equivalent of Guantanamo Bay.
Governing in Prose
During the Democratic Primaries, Senator Hillary Clinton attempted to explain why she believed her "on the ground" approach was better in a president, even though members of the media and millions of Democrats preferred the "excitement," energy, and crowds of Obama's mammoth rallies. Clinton, quoting former New York Governor Mario Cuomo, reminded voters that: "You campaign with poetry, but you govern with prose."
At this point, it is unclear whether even solid prose and policy could alter the power of lobbyists and the impulse for members of Congress to secure earmarks. It is abundantly clear, however, that the wave of excitement that shaped the 2008 election has not transformed Washington into a place that welcomes substantive reform. As Sheila Krumholz, Director of the Center for Responsive Politics, tells the L.A. Times:
Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business"
Correction: Please note that the description of the size of the "earmark" that Obama sponsored has been edited for accuracy.
Washington has its traditions just like any other city. But unlike other places, Washington is the home of the second-oldest profession: politics. This makes the city impervious to demands for change -- especially change that strikes at the core of its deal-based political culture. And while the 2008 election promised "change" at all levels, signs of "business as usual" remain abundant.
Mo' Money, Mo' Problems!
Earmarks
Last week, the House passed an omnibus budget that contains billions of dollars in earmarks proposed by lawmakers in both parties. Several members of the Obama administration, including Obama himself, have sponsored earmarks which appear in the proposed budget.
During his presidential campaign, however, Obama routinely condemned earmarks. His opposition to earmarks led to the media's obsession with Alaska's so-called "Bridge to Nowhere," which Democrats said proved that Sarah Palin engaged in double-talk on fiscal conservatism. Recently, after fiscal watchdogs began publicizing the volume of earmarks in the proposed budget, Obama scrubbed his name from a multi-million dollar earmark that previously designated him as a co-sponsor. The earmarks, however, remain in the bill. Members of Obama's staff have defended the inclusion of earmarks in the budget on the grounds that the concern over pork spending was "last year's business."
Lobbyists
Lobbyists are another staple of Washington's political culture. Obama campaigned on a pronounced anti-lobbying theme, and after he was elected, he immediately implemented rules that prohibit former lobbyists who join the government from shaping policy on issues related to their previous work. But Obama immediately ignored his own rules in order to appoint William Lynn as Assistant Secretary of Defense.
He was also presumably set to waive the rule (or at least ignore the spirit behind it) for Tom Daschle, his original pick to head the Department of Health and Human Services. Although Daschle ultimately withdrew from consideration over controversy surrounding unpaid taxes, some critics also complained that he had earned millions of dollars representing and providing advice to insurance companies and that he was a trustee of the Mayo Clinic. Daschle, however, was not formally registered as a "lobbyist."
In addition, as a campaigner, Obama promised transparency and accountability on health care reform, but lobbyists for insurance companies and other groups have held private meetings with Senator Ted Kennedy to discuss the issue before the public debates. According to the L.A. Times:
As a presidential candidate, Barack Obama said that in overhauling healthcare he would make the negotiations public, and even invite C-SPAN to air the talks on television.As Chair of the Senate Committee on Health, Education, Labor and Pensions, Kennedy will have a large role in shaping health care reform. As usual, lobbyists are directing their attention to the appropriate persons.
Yet in recent months, lobbyists and health insurance company representatives have been meeting behind closed doors -- with the White House's knowledge -- in the office of Sen. Edward M. Kennedy (D-Mass.) to debate options for a new health system.
Improving "Our" Image in the World
Obama's supporters promised that his election would repair the image of the United States in the world community, which, they contend, Bush's militaristic practices and abusive antiterriorism policies severely damaged. A combination of legal strategy, politics and policy considerations, however, have caused Obama to retain many of the same Bush-era practices or legal positions that liberals believe injured the country' reputation. These policies include rendition, blanket usage of the state secrets privilege, the openness to "harsh" interrogation methods "if necessary," support of indefinite detention of Al Qaeda suspects, and the right to bypass federal courts to prosecute certain detainees.
Moving or Closing Guantanamo Bay?
Although Obama promised substantial changes in these areas, to date, the differences relate more to form, rather than substance. For example, although Obama has ordered the closure of the Guantanamo Bay detention center, the Navy has produced a study, at the president's request, which concludes that the facility complies with the Geneva Conventions. Although some human rights advocates condemned the Navy's report, Attorney General Eric Holder subsequently visited the facility and offered favorable reviews as well.
Obama promised to close Guantanamo Bay in response to sharp criticism among domestic and international human rights activists who argued that the Bush administration unlawfully detained captives, denied them access to courts, and subjected them to torture. The Supreme Court concluded that detainees at the facility had a right to judicial review of their detention and, subsequently, that procedural deficiencies in military commissions authorized by Congress made the commissions an impermissible alternative to federal courts.
Although the President has ordered the closure of the facility, the government will likely send many present and future detainees to Bagram Air Force Base in Afghanistan (and to other locations). The Obama administration, following Bush's lead, contends that detainees at Bagram do not qualify for access to the federal courts. Also, Holder and Solicitor General Elena Kagan stated during their confirmation hearings that the United States can indefinitely detain suspected members of Al Qaeda (whether or not they were caught on the battlefield, according to Kagan). If the President acts upon the broad authority his staff claims he possesses, Bagram could easily become the functional equivalent of Guantanamo Bay.
Governing in Prose
During the Democratic Primaries, Senator Hillary Clinton attempted to explain why she believed her "on the ground" approach was better in a president, even though members of the media and millions of Democrats preferred the "excitement," energy, and crowds of Obama's mammoth rallies. Clinton, quoting former New York Governor Mario Cuomo, reminded voters that: "You campaign with poetry, but you govern with prose."
At this point, it is unclear whether even solid prose and policy could alter the power of lobbyists and the impulse for members of Congress to secure earmarks. It is abundantly clear, however, that the wave of excitement that shaped the 2008 election has not transformed Washington into a place that welcomes substantive reform. As Sheila Krumholz, Director of the Center for Responsive Politics, tells the L.A. Times:
"I don't think anyone who is familiar with the way Washington works was under any illusions about the ease in doing this. . . .It's very different to make promises on the campaign stump than it is putting together an administration and running a government. . . . I don't think it's a given that it's possible to change the culture of Washington."I wholeheartedly agree with Krumholz's assessment. There's an old saying about change-resistant people going into new situations "kicking and screaming." But things look so remarkably the same around Washington that even the most stubborn adherents of the status quo have not even begun preparing either to kick or scream. They are definitely engaging in partisan whining and bickering, but that is so yesterday.
Another recent post: Silly Me: Opposition to Earmarks Is "Last Year's Business"
Correction: Please note that the description of the size of the "earmark" that Obama sponsored has been edited for accuracy.
Monday, February 23, 2009
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.
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.
Wednesday, February 11, 2009
So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects
Let me say upfront: I am a cynic. Accordingly, I never took the "change" mantra too seriously. But I certainly thought that after eight years of frenetic liberal criticism of the Bush administration, Obama would indeed offer some important differences. But even that tiny hope has been dashed. After the recent announcements that Obama would continue the practice of rendition and that the CIA would seek approval for "harsher" interrogations "if necessary," the small space I reserve in my heart for idealism and for surprisingly good decisions (or at least decisions that fulfill promises) by politicians has diminished substantially. But after today's news, the space has completely vanished.
What happened today? Elena Kagan, Dean of Harvard Law School and nominee for Solicitor General, announced that she believes that the government has the authority to detain indefinitely terrorism suspects because the country is "at war" with Al Qaeda. Because I am busy finishing edits on a law review article, can someone please explain to me how this differs from Bush's position, which liberals condemned, bashed and burned in effigy?
Related Readings on Dissenting Justice:
Rendition, Secrecy and Torture: Inseparable?
Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
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
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!
Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)
What happened today? Elena Kagan, Dean of Harvard Law School and nominee for Solicitor General, announced that she believes that the government has the authority to detain indefinitely terrorism suspects because the country is "at war" with Al Qaeda. Because I am busy finishing edits on a law review article, can someone please explain to me how this differs from Bush's position, which liberals condemned, bashed and burned in effigy?
Related Readings on Dissenting Justice:
Rendition, Secrecy and Torture: Inseparable?
Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit
Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"
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
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!
Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)
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