Remind me again what we were working for? (Updated after flip)

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He taught Constitutional Law at the University of Chicago.

He said he would end torture, and then he did it.

He said he would close the prison camp at Guantanamo, only to be shot down by his own party. NOTE: Full credit to Pat Leahy and Peter Welch for supporting this effort!

But now we have this: Not only has he pivoted on military commissions (motto: military justice is to justice as military music is to music) apparently Barack Obama is considering imposing a system of preventive detention on people the government doesn't like.

At a private, off-the-record with human rights advocates, Obama broached the topic of preventive detention.

The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed.

They said Mr. Obama told them he was thinking about “the long game” — how to establish a legal system that would endure for future presidents. He raised the issue of preventive detention himself, but made clear that he had not made a decision on it. Several senior White House officials did not respond to requests for comment on the outsiders’ accounts.

“He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can’t charge and detain,” one participant said. “We’ve known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning.”

Note: “individuals who we can't charge and detain” means people who haven't done anything, or we don't have evidence that they've done anything, or the case otherwise wouldn't stand up to scrutiny in court.

You'll remember that it was less than a year ago that the Supreme Court, in the case of Boumediene v. Bush, invalidated the Military Commissions Act because it abolishes the right of habeas corpus for military detainees. The new Obama initiative, if it ever comes to fruition, will have to have the same abolition of habeas corpus in order to enable the government to keep people it suspects of harboring lethal intent towards us. How will our Constitutional Law professor president square his desire to abolish habeas corpus with Boumediene, or, for that matter, with his oath of office?

UPDATE (from odum): Here's a link to a posting of the prepared remarks Obama will make on these issues today. They are well-written (although more than a bit defensive), will no doubt be well-spoken, and pretty much say simply: “state secrets, military commissions, holding back photos… the Bush admin was bad when they did these things because they weren't thematically coordinated and didn't appreciate American values like I do. Since I do have those values (as you can see because I said 'no more torture' and want to close the Gitmo gulag), you can just trust me to do these things – but with a more noble attitude and in a manner that you shouldn't trouble yourselves over. That's why my critics are all wrong.”

50 thoughts on “Remind me again what we were working for? (Updated after flip)”

  1. Look, I didn’t vote for the guy (mccain neither), but I was hoping that he would at least take a step back from the imperial presidency.  Sadly no.  

    Many of my progressive friends have been disappointed by Obama so far.  He was “change”, but his record speaks otherwise:

    1) Bush brought us the Bailouts for fat cats- Obama  continues the cash give aways without accountability.

    2) War:  Bush wanted us to stay in Iraq indefinitely.  Obama plans for us to stay indefinitely and escalate the war in Afghanistan/Pakistan.  So much for giving peace a chance.

    3) Torture/Guantonamo Bay/military commissions:  Who won the election again?

    4) Homeland Security-  Bush and congress created this monster which is an affront to american liberties, Obama takes office and doesn’t even change the policy on warrantless wiretapping and other homeland spying on citizens.

    5) The gangs all here-  Change health care by working with the people who created the mess.  Change Detriot by working with the people who created that mess.  So the lesson is change occurs through working with the traditional opponents to change?  Kinda like when Cheney meet with the gas/oil industry to plan for a change in energy policy.  

  2. I hope that the account is an inaccurate depiction of what he said, because if it’s accurate, Orwell’s 1984 is knocking at the door, holding an arrest warrant for Thought Crime…

  3. Essentially, Mr. Obama’s remarks are a rehash of GWB (is this a pattern?).  “I am a good guy.  My motives are pure.  I know what is right.  Trust me as I ignore two hundred years of American Ideological Tradition, but for your own good.”

    A long time ago I was given this thought experiment to all me to judge whether a particular power or governmental program was acceptable.  Think of the best case scenario for the goal you want to achieve regardless of social and political limitations.  Visualize everything it would take to accomplish those ends to perfection.  Then think of all of the power you would need to accomplish that perfection.  Specifically, think of what control you would need on other people, their property, their lives, their communities in order to achieve your goal.  Now, hand that power to your worse enemy.

    Do you feel comfortable with that person having that power?

    As stated in my previous post, Obama was elected to change government from the evils of the Bush Administration.  The previous administration was rampant with abuse of powers, governmental overreach, and cronyism.  So far, the only difference is the change in face and public attitude.  All of the evils visited upon us by the Bush Administration are slowly being adopted as his own by Obama.

    If anything, this last election clearly indicates that it is not a question of who is in office, but what powers that we allow them that is the central problem with our republic.  

  5. You characterize this group as “people who haven’t done anything, or we don’t have evidence that they’ve done anything, or the case otherwise wouldn’t stand up to scrutiny in court.

    Here’s how Obama explains them:

    Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

    I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people 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. These are people who, in effect, remain at war with the United States.

    I can’t deal well with absolute positions that look at only one side, such as we should not have preventative detentions, without considering the offsetting consequence. So what should we do with these people? Can you fill in the alternative for me so I can think about it from both sides? Are you saying that we should let these people go free because they can’t be tried under existing rule of law? Is Obama’s attempt to codify a rule of law for these circustances a step in the right direction, bringing it under rule, or is it a rule that you feel is outside of constitutional bounds and we are better off not detaining them at all?

    Thanks

  7. Note: “individuals who we can’t charge and detain” means people who haven’t done anything, or we don’t have evidence that they’ve done anything, or the case otherwise wouldn’t stand up to scrutiny in court.

    I want to be clear: I don’t like this situation at all and I think it’s moving into very dangerous territory.  That said, I think it’s incorrect to assume the above are the only options.

    Take, for example, the following scenario: five years ago, we captured someone whom we had solid evidence was providing material support for Al Qaida.  We got this evidence via traditional interrogation methods, but then we got greedy, and decided that the more important thing was to torture him in the hopes that he’d provide us with false evidence of an Iraq Al Qaida link.

    Well, now we’ve got this guy in custody that we know to be a supporter of terrorism, and he’s probably a lot more motivated to do us damage than before this happened.  But we can’t use any of the evidence we’ve acquired against him, because we’ve treated him abusively and by all rights the case should be thrown out and he should be released and probably sue us for a few million dollars.

    Honestly– I think if we’re in that situation, we’re kind of screwed and there is no good answer to this.  Personally, I think if we’ve treated a prisoner this badly that all the evidence we’ve got against him is tainted?  He needs to be released, even if it leads to really bad consequences.  But I get why someone would be really troubled by that decision and not be sure what needs to be done here.

    I don’t have an answer here.  I really don’t.

  9. Steve made a good point about conspiracy being an existing law that could cover these suspects, but Julie also throws out a troubling scenario that Obama has inherited.

    I tend to agree with Obama’s approach and appreciate the long-term aspect of it. I don’t think he is looking at it from an Ex Post Facto angle at all, I think he is looking ahead to try to establish rules of law that will more clearly cover this situation for the next Bush-ish administration. He’s trading in whatever political capital he has on the torture and detention violations of the Cheney regime to try to create new laws to apply to future administrations. We’ve seen that this is how he thinks.

    The rule of law needs to change or grow at times, like new legislation to cover internet privacy or property, and there are new scenarios coming to light here that should be addressed. That will be of great benefit in the long term if Obama can do it right. It’s premature to judge that yet with reactions that Obama is going to do everything that Bush did. I’m pretty sure that we will a)not be totally satisfied with the results, and b)be much better off than we were before.  Just like much of Obama’s initiatives.

  10. I’m totally feeling like we’re going to see the same thing happen with the Democrats that we did with the Republicans– justifying bad policy because he’s “our guy”. Despicable.

  11. Interesting first-person perspective on the meeting…

    Many of you are aware that President Obama convened a meeting with civil liberties advocates on the issues of the Guantanamo closure, military commissions, etc. The meeting was convened specifically for the purposes of varying the input the President was getting on those issues, in particular, opinion from civil liberties advocates who’ve been critical of some of his decisions.

    I sat in on the meeting, and though the understanding was that the substance was off the record, the basics of what was discussed — and some specifics about the discussion — have obviously already been reported. The exchange was not unguarded, but I don’t think there was any doubt left about where people stood, nor was there much shifting of the ground. As the President’s speech this morning makes clear, he feels that the blight of Guantanamo needs to be erased, and the disposition of the status of the detainees needed to be brought as nearly into compliance with traditional practice as possible. But he was also firm in his insistence that there were certain detainees for whom trials in Article III courts were inadequate to the dual demands of justice and public safety. It was equally clear that this wasn’t something on which he had universal agreement from the group. I think everyone knew that going in (and indeed, that was part of the purpose of the meeting), and it was still true when we left.

    There’s not much I’d feel compelled to add to what’s already out there, though one thing that jumps out at me is that I don’t know that I’d be able to agree with the assessment Isikoff passes on that the President spoke for the Attorney General and foreclosed the option of investigations, prosecutions or the like. The President ran the meeting, and it was his session. But I don’t know that I’d agree that it was his intention to announce the foreclosure of any such options. It may ultimately be his actual intention, but it didn’t appear to be his intention to declare it then and there — a subtle difference perhaps, but that subtlety was pretty much characteristic of most of what he had to say. He took his time and approached the issues and his answers to our questions carefully. The absence of any comment from the Attorney General appeared to me to be more of an acknowledgment that it was the President who wanted to direct the discussion, and the White House staff and administration officials present weren’t getting in the way of that.

    Read the whole thing.

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