Unbeknownst to many people, Barack Obama’s ascendency to the presidency has, despite his 2008 campaign promises, done almost nothing to reverse one of the most heinous policies of the Bush-Cheney era: the practice of indefinitely detaining people whom the US state deems “enemy combatants”, or terrorism suspects. Without charges and without recourse to a judge. The mere charge of being a terror suspect can still lead to uncontrollable, unaccountable detention by the American government; this is viewed by both Bush-Cheney and Obama as an inherent, presidential prerogative. No one who is not out of his right mind would not view this as in straightforward contradiction to the rule of law.
But President Obama’s record has just gotten even worse. After months of threatening to veto a bill put forward by the partly Republican-controlled Congress allowing the U.S. military to indefinitely detain anyone, including American citizens, anywhere in the world, including in the U.S., without charges, he has now said that he will sign it into law.
Thereby Obama, the 2008 darling of liberals and progressives, has become the president who has made extrajudicial indefinite detention at the charge of being an “enemy combatant” official law and policy, rather than an exception. Obama is even worse than Bush-Cheney! This should be clear to anyone who is still an Obama fanboy.
When in the 1950s, the McCarthy era, Congress presented Harry Truman with a similar bill allowing the indefinite detention of Communists and other ‘subversive elements’ without charges, Truman vetoed it. But Obama is not such a person. The right not to be detained forever by the state without a fair trial is a fundamental human right, part of the Western juridical tradition, that has just been violated possibly forever by this president.
This becoming law will also mean two things. First, that the U.S. military can now be involved in domestic policing activities (!). Second, that the battleground of the so-called ‘War on Terror’ has now been extended to American soil too. Can you believe that?
At this point, I would officially hope that Obama gets defeated at the polls next year. If Ron Paul’s ideas on economic policy weren’t so nutty, I would support him – a Republican - if he was the nominee.
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation’s supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law’s critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
“We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Graham added that it was right that Americans should be subject to the detention law as well as foreigners. “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” he said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
But another conservative senator, Rand Paul, a strong libertarian, has said “detaining citizens without a court trial is not American” and that if the law passes “the terrorists have won”.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk,” he said. “Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.”
Paul was backed by Senator Dianne Feinstein.
“Congress is essentially authorising the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”
So let it be noted that Obama here has followed the line of the most conservative Republicans.
In yet another confirmation that the Obama administration’s handling of counterterrorism policy is nothing but a continuation and, in fact, reinforcement of Bush-era policies, the US Department of Justice decided on Thursday that all cases against (former) low-level CIA and military employees suspected of having employed torture, sometimes leading to murder, are to be dropped, except two.
So there’s not gonna be any accountability for the breaches of human rights and the Geneva Conventions conducted under the last administration in the name of the ‘War on Terror’.
Back in August 2009, the Obama White House already decided that there would be no torture investigations regarding former administration officials (Bush, Cheney, Rumsfeld) and government lawyers (John Yoo, Jay Bybee) who invented and implemented the ‘legal’ architecture for things like indefinite detention, military commissions and ‘enhanced interrogation methods’ (torture), which eventually spread from Guantánamo Bay and the secret ‘black sites’ to Abu Ghraib and Afghanistan. Neither would there be investigations regarding CIA and military employees who stayed ‘within the lines’ of the new torture regime (even though a lot of people, including JAG lawyers, protested at that time).
The only exception to this immunity granted by Obama would be for those employees who went beyond even what was permitted by the Bush administration in terms of torture. And of those 101 cases, all are now dropped except two.
Those two cases are the most gruesome imaginable: one is of a detainee who froze to death in an American secret prison in 2002 after being stripped and chained to the floor, and the other is of the Abu Ghraib detainee who was photographed in 2003 with a guard holding her thumbs up. All other horrors perpetrated under the Bush administration will now be fully, legally protected.
Change we can believe in. And what’s more: except for one executive order ordering a halt to ’enhanced interrogation methods’, there’s nothing that can prevent a future president from starting to employ torture again…
Consider what’s being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons – ”black sites” — purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: ”We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: ”there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation’s history — the systematic, deliberate legalization of a worldwide torture regime — will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party’s control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens’ torture at American hands.
All of those efforts, culminating in yesterday’s entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
As Glenn Greenwald notes, the Obama administration has blocked all attempts by detainees to sue torture facilitators with its generous use of the state secrets doctrine.
What that means is that the only thing preventing a future Republican president from using torture techniques is a flimsy, reversible executive order from the president himself, because no court has ever made a determination that the interrogation techniques themselves were illegal. Both the new Secretary of Defense Leon Panetta, and the new CIA chief David Petraeus, both once among the most prominent opponents of torture, have now expressed support for the idea of using coercive interrogations in “limited” circumstances. Torture became an issue of partisan dispute because Republicans rallied to the defense of their former president. What happens if the same thing happens with Obama supporters, and they feel the need to minimize the magnitude of what happened under Bush in order to defend the lack of accountability sought by their president?
The fact that so few people, if any, will face professional, civil or criminal sanction for torture bothers me far less than the possibility of torture itself becoming American policy again. Between the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability, that outcome seems quite possible.
I find this to be a rather peculiar statement from Obama on the Department of Defense’s report on the repeal of “Don’t Ask Don’t Tell”:
The President released the statement below on the DOD report released earlier today on the impact of repealing “Don’t Ask Don’t Tell”:
As Commander in Chief, I have pledged to repeal the “don’t ask, don’t tell” law because it weakens our national security, diminishes our military readiness, and violates fundamental American principles of fairness and equality by preventing patriotic Americans who are gay from serving openly in our armed forces. At the same time, as Commander in Chief, I am committed to ensuring that we understand the implications of this transition, and maintain good order and discipline within our military ranks. That is why I directed the Department of Defense earlier this year to begin preparing for a transition to a new policy.
Today’s report confirms that a strong majority of our military men and women and their families—more than two thirds—are prepared to serve alongside Americans who are openly gay and lesbian. This report also confirms that, by every measure—from unit cohesion to recruitment and retention to family readiness—we can transition to a new policy in a responsible manner that ensures our military strength and national security. And for the first time since this law was enacted 17 years ago today, both the Secretary of Defense and the Chairman of the Joint Chiefs of Staff have publicly endorsed ending this policy.
With our nation at war and so many Americans serving on the front lines, our troops and their families deserve the certainty that can only come when an act of Congress ends this discriminatory policy once and for all. The House of Representatives has already passed the necessary legislation. Today I call on the Senate to act as soon as possible so I can sign this repeal into law this year and ensure that Americans who are willing to risk their lives for their country are treated fairly and equally. Our troops represent the virtues of selfless sacrifice and love of country that have enabled our freedoms. I am absolutely confident that they will adapt to this change and remain the best led, best trained, best equipped fighting force the world has ever known.
I guess I find it peculiar in two ways.
First, and more tangentially, Obama shows that he appreciates that even where the possibility of filibuster exists he does have strategic options like commending congress to do what he urges with his presidential platform and letting them wear it when they don’t. Many of the policies that Obama has been timid on progressing in the system were very popular policies. Past presidents did exactly what he is doing here: lining up his ducks, including public opinion, and then letting the Senate wear it if they want to stand in the way. Too bad he did not embrace this tactic two years ago.
Second, and on point, the statement in my mind reads like 1) someone who is crystal clear that the policy he is looking at repeal violates fundamental rights; but, 2) someone who is only willing to address the violation to the degree that is convenient. I could be convinced otherwise, though not easily.
Why is he going out of his way to assure us that the troops, DoD brass and context all support this move now and hence it is time to roll with the repeal? Put another way had one of these three not pointed in favour of repeal would he be putting it off? For how long?
Look, we are talking about an actively engaged military, so obviously knee-jerk reforms are likely a bad idea. And considering context goes to not making knee jerk reforms. But what are the limits to that consideration. People have being priming the pump for a repeal of DADT for years. It is prioritization of the opinion of the brass and troops that chaff me the most. Had a strong majority of our military men and women and their families or their commanders not been prepared to serve alongside Americans who are openly gay and lesbian would we Obama be willing to allow this violation to continue? I can only assume so given how much emphasis he places on these points in the statement and that he states them rather like conditions instead of convenient facts, or that he felt it necessary to address these points at all, frankly.
It is all the more peculiar given that he also made clear in the opening of the statement that he recognizes that he is the Commander in Chief and that maintaining “good order and discipline within our military ranks” (read hierarchical control) is important. Why is he (implicitly) suggesting his subordinates opinions dictate military policy?