Nudging Obama

Formerly "Obama Watch" Keeping the promise of change

Obama and habeas corpus — then and now

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Glenn Greenwald

Salon:SATURDAY APRIL 11, 2009 08:41 EDT

To recap: Obama files a brief saying he agrees in full with the Bush/Cheney position. He’s arguing that the President has the power to abduct, transport and imprison people in Bagram indefinitely with no charges of any kind. He’s telling courts that they have no authority to “second-guess” his decisions when it comes to war powers. But this is all totally different than what Bush did, and anyone who says otherwise is a reckless, ill-motivated hysteric who just wants to sell books and get on TV.

Consider what Barack Obama — before he became President — repeatedly claimed to believe about these issues. The Supreme Court’s Boudemiene ruling was issued at the height of the presidential campaign, and while John McCain condemned it as “one of the worst decisions in the history of this country,” here is what Obama said about it in a statement he issued on the day of the ruling:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

My, what a ringing and inspiring defense of habeas corpus that was from candidate Barack Obama. So moving and eloquent and passionate. And that George W. Bush sure was an awful tyrant for trying to “create a legal black hole at Guantanamo” — apparently, all Good People devoted to a restoration of the rule of law and the Constitution know that the place where the U.S. should “create a legal black hole” for abducted detainees is Bagram, not Guantanamo. What a fundamental difference that is.

Even worse, here is what Obama said on the floor of the Senate in September, 2006, when he argued in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees. I defy anyone to read this and reconcile what he said then to what he is doing now:

The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:

“Sometimes, we just didn’t get the right folks.”

We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria–through a rendition agreement–tortured, only to find out later it was all a case of mistaken identity and poor information. . . .

This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .

But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance–even one chance–to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

In Sunday’s New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe “actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay.”

This is not just unhelpful in our fight against terror, it is unnecessary. We don’t need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.

Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:
“To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ….. The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.”

The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future–our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the “great writ” — a writ that has been in place in the Anglo-American legal system for over 700 years.

Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life.
I yield the floor.

So that Barack Obama — the one trying to convince Democrats to make him their nominee and then their President — said that abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Americans generally; and (f) a violent betrayal of core, centuries-old Western principles of justice. But today’s Barack Obama, safely ensconced in the White House, fights tooth and nail to preserve his power to do exactly that.
I’m not searching for ways to criticize Obama. I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law. But these actions — these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney — are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don’t want to see it, or that you’re so convinced of his intrinsic Goodness that you’ll just believe that even when it seems like he’s doing bad things, he must really be doing them for the Good. If there was any unanimous progressive consensus over the last eight years, it was that the President does not have the power to kidnap people, ship them far away, and then imprison them indefinitely in a cage without due process. Has that progressive consensus changed as of January 20, 2009? I think we’re going to find out.

http://www.salon.com/opinion/greenwald/2009/04/11/bagram/index.html

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Written by bearmarketnews

April 12, 2009 at 8:48 pm

Posted in Uncategorized

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