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

MAJOR UPDATE: THEY'RE BAAACK. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEE RELATED COVERAGE:

They're Baaack. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related readings on Dissenting Justice:

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

Rendition, Secrecy and Torture: Inseparable?

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

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

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

Ahem

Well, at least they are catching up. Now Charlie Savage, a mainstream card-carrying journalist, has reported that Obama has claimed authority to engage in some of the most disparaged practices of the Bush administration -- such as using rendition and invoking a broad "state secrets" privilege. A few bloggers and journalists picked up on this a while ago. But this is still an interesting development. I am particularly interested in how progressives will respond.

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

Glenn Greenwald has been providing extensive coverage of the debate surrounding Obama's recent assertion of the "state secrets privilege." The privilege shields from disclosure information or testimony related to national security. Several courts have broadly applied the privilege and have dismissed anti-torture and other civil liberties-related lawsuits that challenge various aspects of Bush's "war on terror." Many liberals contend that Bush used the privilege to create a wall of secrecy to hide torture and other deprivations of human dignity.

During his presidential campaign, Obama pledged to abandon Bush's approach to governmental secrecy and to create more transparency within the Executive Branch. According to some liberals, however, he "failed" his first test on this issue when he recently invoked the privilege to defend the dismissal of an anti-torture case. Bush successfully asserted the privilege in the same case, which is now on appeal, in order to secure dismissal.

Congressional Democrats Introduce Legislation Concerning Use of State Secrets Privilege
Obama's decision to invoke the privilege has generated criticism among civil liberties advocates. Now, members of Congress have added their voice to the situation. Yesterday, Pat Leahy and Arlen Spector reintroduced the State Secrets Protection Act of 2008, which Hillary Clinton and other senators introduced last year. Several House Democrats have introduced a similar measure.

The proposed law would require courts to evaluate each individual item of evidence in order to determine whether any of the materials contain sensitive information. Several courts have broadly recognized the privilege and dismissed cases without conducting an item-by-item review of materials which, absent the privilege, the government would normally have to disclose.

Although the proposed legislation would not prevent courts from dismissing cases based on the privilege -- particularly if they broadly defer to the government on the issue of national security -- adherence to the item-specific approach would provide greater transparency. In addition, another provision which would require courts to consider the possibility of a "non-privileged" alternative (such as a stipulation of facts, redacted submissions, etc.) could potentially mitigate against dismissals based solely on recognition of the privilege. The government, however, could simply deny the feasibility of creating a workable alternative to the desired materials without revealing sensitive information.

Politics and Law: Could the Proposed Legislation Provide Political Cover for Obama While Advancing the Interests of Congressional Liberals?
The Obama administration has stated that it is conducting a review of cases that implicate the state secrets privilege. But while assertion of the privilege angers liberal activists, DOJ lawyers -- who must engage in "zealous advocacy" on behalf of the government -- predictably decided to "stay the course" when they had to pick a strategy to argue an actual case. Perhaps the movement on this issue by members of Congress (prior to the completion of DOJ review) demonstrates that they predict this "smart" legal strategy will ultimately outweigh political considerations.

Liberals in Congress, however, might also favor the law in order to provide Obama with political "cover" and to advance their own interests. The proposed measure would either require Obama to follow a path that he personally desires but which his staff and political moderates and conservatives disfavor -- or which he disfavors, but which a well organized and influential part of the Democratic party supports. The measure would also allow liberals in Congress to notch a victory on an issue that civil libertarians favor -- and which created an immense amount of controversy during the Bush administration.

Neither Obama nor Senate Democrats, however, probably want to engage in highly public battle over this issue. Perhaps Obama and Congressional Democrats have quietly "negotiated" a path that will provide the president with political cover among liberals, while allowing him the latitude to manage the affairs of the Executive Branch, and which scores points for the lawmakers among liberal organizations. The proposed measure could potentially accomplish that balance. Because the statute makes a strong statement against the blanket assertion of the privilege, but does not disturb the typical practice of courts deferring to the president on matters of national security, both sides could come away with a "victory."

An Aside: Separation of Powers
If Obama strongly disapproves of the measure, he could veto it (in the event that Congress passes it). He could also challenge its application in court on "separation of powers" grounds. Although Congress has the authority to establish evidentiary standards for use in federal courts, this particular evidentiary privilege arises out of executive power. Obama could argue that Congress (or even the courts) lacks the power to define the boundaries around which the privilege operates. Historically, presidents have not been successful when they have made these types of arguments (e.g., Richard Nixon).

[Editor's Note: My colleague Amanda Frost has examined (and rejected) separation of powers concerns in this setting. See here.]

Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Speaking of Obama, Rendition and Torture. . . .

Rendition, Secrecy and Torture: Inseparable?

A week ago, L.A. Times journalist Greg Miller published an article which reported that the Obama administration would continue Bush’s rendition program. Rendition describes the CIA's transfer of individuals to other countries for interrogation, prosecution or detention. During the Bush administration, many human rights groups and activists condemned rendition on four discrete grounds: 1. Rendered individuals lacked access to courts; 2. Rendered individuals lacked access to lawyers; 3. The government used rendition to “outsource” torture; and 4. The government rendered individuals to prolonged detention in CIA prisons.

Miller acknowledged in his article that Obama has ordered interrogators to comply with laws prohibiting torture and commanded the CIA to close its prisons. Nevertheless, the article stated that Obama would continue and perhaps expand the use of rendition.

Miller’s article generated a very vocal pushback from many liberals. The standard argument in Obama’s defense contends that Miller grossly distorted the nature of Obama’s rendition program by linking it to Bush. Unlike Obama, Bush practiced “extraordinary rendition,” not “rendition,” because he sent people to torture and indefinite detention. Liberal defenders of Obama’s rendition program dismissed the article as the product of a “punked” journalist, and many of them deemed critics of Obama’s continuation of rendition as either right-wing conservatives looking to bash the president or well intentioned liberals confused over the meaning of rendition.

Liberal Defenders of Rendition Condemn Obama's Assertion of the State Secrets Privilege
The last few days, however, have produced a lot of clarity on this subject, and many individuals who originally defended Obama's use of rendition now express outrage. Their anger arises primarily from Obama’s recent decision to assert the “state secrets privilege” in a rendition-related lawsuit.

Civil liberties groups criticized Bush for broadly invoking the privilege in order to resist disclosing information related to rendition. Many courts have recognized the privilege and dismissed lawsuits filed by individuals who claim the government rendered them to torture and other abuses. Human rights groups believed that Obama would completely abandon this practice. They were wrong.

The ACLU described the Obama administration's recent assertion of the privilege as offering “more of the same.” The ACLU represents the plaintiff in that particular case. Nevertheless, several liberal bloggers who initially defended Obama's rendition policies now express deep disappointment over his assertion of the state secrets privilege.

Glenn Greenwald
Salon blogger Glenn Greenwald (one of my favorite commentators) blasted Miller’s analysis as “wildly exaggerated and plainly inaccurate.” Yesterday, however, Greenwald argued that by invoking the state secrets privilege, Obama “resoundingly and disgracefully” failed his “first test on civil liberties and accountability.”

Andrew Sullivan
Pro-Obama blogger Andrew Sullivan predictably defended the president after the publication of Miller’s article. Sullivan argued that Miller “got rolled by the usual suspects” and that Obama’s new policies make “the detention and rendition of terror suspects much less worrying.”

Now that the Obama administration has invoked the state secrets privilege, Sullivan suddenly appears “worried.” Sullivan says that the decision “is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

Hilzoy
Popular liberal blogger Hilzoy also criticized Miller’s article (which sparked an exchange between the two of us) for not properly distinguishing Obama's policies from Bush. Hilzoy argued that: “It's important . . . to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction . . . to another; includes [sic] all sorts of perfectly normal things, like extradition, which are not problematic legally.”

Obama’s assertion of the state secrets privilege, however, troubles Hilzoy. She offers the following critical analysis of Obama’s legal arguments: “Like every other Bush administration court filing I have read, it is striking not just for the breadth of the powers it claims for the government, but for the complete absence of any concern for justice.”

Supporting Rendition Contradicts Liberal Concerns Over Secrecy and Civil Liberties – To Some Extent
Although some liberals support rendition (minus the intentional or effective rendering of individuals to torture or prolonged detention) their position is potentially unstable because rendition conflicts with their expressed concern over governmental secrecy, their desire for transparency, and their defense of civil liberty. Consequently, I predict that the Obama administration will continue to disappoint liberals who desire absolute transparency and a strong commitment to civil liberties under all circumstances -- but who, nonetheless, support rendition (as distinct from "extraordinary rendition"). Here’s why.

First, for the last eight years, human rights activists have argued that diplomatic assurances are ineffective against torture. But during his confirmation hearings, CIA director Panetta said that the Obama administration would in fact call upon the State Department to make sure that the CIA does not render individuals to torture. If rendered individuals face torture during the Obama administration, then liberals will have to question why they supported the practice in the first place -- especially in light of human rights literature which states unequivocally that diplomacy cannot prevent torture.

Second, Panetta also stated during his confirmation hearings that he would seek permission to use harsher interrogation methods “if necessary.” This position sounds exactly like Bush’s promotion of “enhanced interrogation” practices, which previously angered liberals. Moreover, some human rights organizations argue that the Army Field Manual -- which Obama has ordered interrogators to follow -- permits torture under certain circumstances.

Because rendition lacks judicial or administrative oversight, CIA agents will have greater opportunities to utilize harsh or tortuous interrogation methods -- or to outsource the practice to other nations. Thus, liberal support for rendition does not help to safeguard the bodily integrity of terrorism suspects.

Finally, while some liberal bloggers try to link “rendition proper” with accepted practices such as extradition, the CIA’s policy of abducting individuals (regardless of whether the government renders them to torture or prolonged detention) differs dramatically from extradition because it lacks judicial or administrative oversight and because individuals do not have a right to counsel. The lack of judicial review and legal representation allows violations of anti-torture laws to go undetected or unpunished – which is exactly why Obama’s (and Bush's) assertion of the state secrets doctrine bothers many liberals. Some amount of secrecy, however, comes with this messy territory. Public and open "abductions," to which due process attaches, do not resemble true abductions; instead they look much more like ordinary arrests (which could lead to extradition).

Thinking Out Loud: My Unsettled Position on the State Secrets Privilege
If rendition is legal and acceptable (which some liberals contend), then I would argue that the government can legitimately shield a lot of the details from public disclosure. Many bloggers argue, however, that the government has used the privilege to protect from disclosure actions that cannot qualify as relevant to national security or which constitute or reveal deprivations of human rights. But privileges often operate prophylactically by shielding certain categories of information from discovery -- even if disclosing such materials would reveal wrongdoing or if disclosure would not frustrate the very purpose underlying recognition of the privilege (in this case, to safeguard intelligence and to protect national security). Courts apply privileges broadly because the risk of disclosure could “chill” otherwise legitimate communications or actions; also, courts could erroneously require disclosure of damaging material unrelated to the litigation.

In this setting, however, courts have applied the privilege quite broadly, and this has inevitably resulted in the dismissal of litigation. Some critics argue that those courts should have examined every item of potential evidence and determined on an item-specific basis whether to apply the privilege. But if these same courts had actually followed this more transparent approach -- yet deferred to the government's determination that disclosure of an individual item of evidence would implicate national security -- the courts would likely have reached the same conclusion and dismissed the litigation.

Unlike many of my colleagues, I have not taken a firm position on the state secrets privilege. Nevertheless, I believe that Obama has a strong argument (as did Bush) that the nature of rendition requires vigorous protection of the privilege. Supporters of rendition (including many liberals) argue that it promotes national security. If this is true, then the government should probably have a great deal of control – if not absolute control -- over the details of the program.

If rendition does not advance national security (or if does so infrequently), then liberals should rethink their support of the practice. Perhaps they should advocate alternative procedures for transferring suspects -- like extradition -- that are more open and transparent. By endorsing rendition, liberals are crediting, to some extent, the government’s assertion of privilege and secrecy, which in turn facilitates the human rights abuses that liberals passionately condemn.

Related Readings on Dissenting Justice:

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

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

At a court hearing held today, the Obama administration maintained the Bush policy of asserting a broad "state secrets" privilege to shield from disclosure information related to the CIA's rendition program. Human rights activists have long maintained that Bush utilized the program to "outsource" torture.

Several human rights organizations have filed lawsuits on behalf of individuals whom the Bush administration allegedly rendered to torture. The government, however, has refused to provide details of facts related to rendition, and courts, broadly applying the state secrets doctrine, have invariably dismissed lawsuits challenging the program.

Although some human rights organizations have drawn a hard line in the sand concerning the state secrets issue, earlier today the Obama administration reasserted the privilege during an appellate argument in a previously dismissed case. The ACLU, which represents the plaintiff, has condemned the DOJ's position as offering "more of the same."

I wrote on this in an earlier blog entry. If the Obama administration wished to drop the policy in this particular case, it would have done so prior to today's oral arguments. Most lawyers, however, do not shift positions in order to lose a case. Furthermore, the privilege can help secure victories in future cases; accordingly, DOJ will continue asserting it.

The DOJ's position is less about creating a wall of governmental secrecy; instead, it represents a powerful litigation strategy. Although acceptance of the privilege by courts results in the dismissal of anti-torture litigation, very few lawyers would forgo such a powerful strategic device.

But rendition and secrecy provoke passionate political debate. Accordingly, the Obama administration has released a statement, which (predictably) says that DOJ will "review" the state secrets privilege in other cases. The ACLU, however, is fuming. I, however, am not surprised -- particularly since Obama will continue rendition itself. Kidnapping probably works best when potential "victims" know very little about past practice. Activists who oppose state secrets should demand an open process like extradition.


Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

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