Thursday, May 21, 2009

Hope or Despair?

Watching the Obama Administration up until now, I have wavered between hope and despair. On the down side, Obama seems to be adopting many of the Bush Administration's policies in slightly modified form. He is also seeking to hide as much as possible of what they did. On the other hand, there have been growing cracks in the attempt at concealment. I am not so naive as to believe that the Obama Administration is repeating the Bush arguments on national security in court in hope of losing, but that is, in fact, what appears to be happening. It is important both to have a President who respects the rule of law and to have institutions that can reign him in if he does not. Of course, I would rather have both than have to choose one or the other. But given the choice, I would rather have a lawless President reigned in by strong institutions than a law-abiding President but no institutions capable of restraining him. Which means that ultimately it is better to have evidence of Bush outrages released in spite of Obama than because of him.

That was how I hung onto hope until Tuesday. That was the day that Congress finally stood up to the President and reigned him in. Voting 90 to 6,* the Senate stripped defense funding of any funds for closing down the prison at Guantanamo. (Although I am unclear on this point, they may also have barred release into the US of any detainees determined not to be terrorists, or even their transfer to other countries. In other words, Congress has boldly stood up to the President and mandated that we lock terrorism suspects, innocent and guilty alike, away forever with no recourse. Not quite what I had in mind for reigning in an out-of-control President! And make no mistake, this is not just intended to prevent the release of actual terrorists onto US soil. Senator Ben Nelson (D-Nebraska) has made quite clear that the point is to bar any suspect, innocent or guilty, from being released anywhere in the world. "We need to work with other countries to make sure that they don't release them. That they keep them incarcerated. After all, they're their residents, they're their citizens and after all, they have an obligation here as well."

President Obama responded with a speech today, which, once again, leaves me wavering between hope and despair. Stripped of cliches and platitudes, it amounts to a proposal to close the prison at GTMO and dispose of the inmates in five ways:** release, transfer to other countries, trial in federal court, trial by military commission and indefinite detention (he was not clear where). Consider hope and despair in each category.

(1) Release. Obama was quite emphatic on this point. "[T]his has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings." This is all to the good -- if obeyed. The difficulty is finding somewhere to release the innocent to. Innocent or guilty, Congress seems determined to block to release of any detainees into the US, and possibly even to third countries. Nor are third countries apparently willing to accept releasees if the US will not accept any. Result: Unless this impass is broken, at least 21 (and maybe more) innocent detainees will be left to rot in GTMO forever. Hope or despair?

(2) Transfer. Obama reported that 50 detainees have been cleared for "transfer" to other countries. It is not clear whether this means release into other countries or imprisonment in other countries. An article on the subject describes the proposed transfers as "as either low-level threats who no longer have valuable intelligence to give, or have been cleared for transfer because of a court order or otherwise lacking evidence against them." It also speaks of transfers as being prosecuted, rehabilitated, or released, suggesting that the category covers both imprisonment and release. Once again, this is all to the good if it is actually done. Congress, however, seems so terrified that transferees might return to terror that it may very well block such attempts. And other countries are notably reluctant to accept such transfers. Hope or despair?

(3) Prosecution in federal court. Obama reported that the Administration is "preparing" to transfer one detainee to New York for trial on the 1998 embassy bombings. An unknown number of others will presumably follow. This is, of course, exactly what Bush critics have been advocating for a long time. It is also what Congress is in a screaming frenzy about not allowing. However, I am inclined to be (perhaps foolishly) optimistic here and think that the prospect of an actual public trial and conviction of a terrorist will be appealing enough to overcome resistence, and that critics can be shouted down. ("Republicans are trying to block the trial of a vicious terrorist for his crimes!") And perhaps the trial and conviction of one terrorist in the US with no catastrophic consequences will encourage further such trial. I lean toward hope here, but we will see.

(4) Trial by military commission. This is what Obama proposed for detainees who "violate the laws of war." He defended military commissions as a long-standing practice dating back to the Revolutionary War and proposed modifications to the Bush-era military commissions to make them more just and credible. Many critics decry this as no more than a "kinder, gentler" version of the Bush system. I, myself, am inclined to reserve judgment. If these commissions make only cosmetic changes from the Bush era, they certainly deserve to be condemned. On the other hand, if they are something closer to an ordinary court martial, that would be acceptable. Hope or despair will await further details.

(5) Indefinite detention. This is the most controversial category, as Obama himself acknowledges. He would reserve it for "[P]eople who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans." This appears, in other words, to refer to people who belong to terrorist organizations but have not committed any actual terrorist acts. This category has, indeed, always been problematic. Release with close surveillance is the traditional law enforcement approach, but the world is a big place, making such surveillance easy to dodge. Obama's proposal for such people is a system of preventive detention, requiring Congressional authorization, clear standards, fair processes, and periodic review. At first glance, it seems almost reasonable. But then again, so did many proposals by the Bush Administration. And who can doubt that this one will get through Congress with only token opposition. The only hope to stop it would be a finding of unconstitutionality by the Supreme Court. Despair is in order here.

*Voting no were Senators Durbin, Durbin, Harkin, Leahy, Levin, Reed (not to be confused with Reid!), and Whitehouse. Senators Dodd, Feingold and Sanders voted for the measure. The entire West Virginia delegation, FWIW, was AWOL.

**Listed here in the order of severity, not the order he listed them in.

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