[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
Showing posts with label military tribunals. Show all posts
Showing posts with label military tribunals. Show all posts
Thursday, May 21, 2009
Saturday, May 9, 2009
They're Baaack. . . .
Recently, the New York Times reported that the Obama administration would likely bring back the controversial military commissions in order to prosecute terrorism suspects. During the Bush administration, the commissions generated a lot heat among civil libertarians in the United States and abroad.
As a Senator, Obama voted against the Military Commissions Act of 2006, and he successfully campaigned on the promise that he would would restore the image of the United States in the international community. Many liberals view the Bush administration's denial of basic civil rights as one of the greatest blemishes on the image of the United States.
During his campaign, President Obama criticized the use of military commissions, rather than federal courts, to prosecute terrorism suspects. When he first took office, President Obama issued a series of executive orders, including one that imposed a 120-day stay on all proceedings in military tribunals while a task force studied and developed alternatives to the existing process.
Today, additional news sources confirm that the Obama administration will "stay the course" and utilize military tribunals, rather than federal courts, to prosecute accused terrorists. According to the Washington Post the government will reform the rules of the military commissions in order to provide greater procedural rights to defendants:
Closing Statement
In a prior blog post on this subject, I summarized the policies that Obama has pursued, but which liberals passionately criticized during the Bush administration. I have reprinted that list below, with an obvious modification.
The Obama administration has embraced many of the same positions that liberals and Obama himself criticized during the Bush administration. 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.
* Now, it is clear that the Obama administration will use a "kinder, gentler" military commissions process to prosecute terrorism suspects -- despite liberal condemnation of the proceedings during the Bush administration and the curtailment of due process that this decision will naturally involve.
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, most liberals remain quite pleased with Obama's performance.
Other recent postings:
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
As a Senator, Obama voted against the Military Commissions Act of 2006, and he successfully campaigned on the promise that he would would restore the image of the United States in the international community. Many liberals view the Bush administration's denial of basic civil rights as one of the greatest blemishes on the image of the United States.
During his campaign, President Obama criticized the use of military commissions, rather than federal courts, to prosecute terrorism suspects. When he first took office, President Obama issued a series of executive orders, including one that imposed a 120-day stay on all proceedings in military tribunals while a task force studied and developed alternatives to the existing process.
Today, additional news sources confirm that the Obama administration will "stay the course" and utilize military tribunals, rather than federal courts, to prosecute accused terrorists. According to the Washington Post the government will reform the rules of the military commissions in order to provide greater procedural rights to defendants:
The [new] rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys.Nonetheless, until the government provides specific details, it is unclear whether these proposed changes will substantially alter the military commissions process as it existed in the Bush administration. Many critics argue that the government prefers military courts because the procedural rules strongly favor prosecutors. If this is true, then the Obama administration is likely using the controversial courts for the exact same reason as President Bush. The admission of hearsay evidence is extremely problematic because it allows the government to introduce damning statements into evidence, which the defendant cannot cross-exam (because the person who made the statement is not testifying). Accordingly, some civil liberties groups have vowed to sue.
Closing Statement
In a prior blog post on this subject, I summarized the policies that Obama has pursued, but which liberals passionately criticized during the Bush administration. I have reprinted that list below, with an obvious modification.
The Obama administration has embraced many of the same positions that liberals and Obama himself criticized during the Bush administration. 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.
* Now, it is clear that the Obama administration will use a "kinder, gentler" military commissions process to prosecute terrorism suspects -- despite liberal condemnation of the proceedings during the Bush administration and the curtailment of due process that this decision will naturally involve.
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, most liberals remain quite pleased with Obama's performance.
Other recent postings:
Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor
Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"
Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
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