[Peace-discuss] Obama and habeas corpus -- then and now

[Morton K. Brussel]

Obama: A hollow, confused, devious, or… man? For you to decide.

Glenn Greenwald
Saturday April 11, 2009 08:41 EDT
Obama and habeas corpus -- then and now

It was once the case under the Bush administration that the U.S. would  
abduct people from around the world, accuse them of being Terrorists,  
ship them to Guantanamo, and then keep them there for as long as we  
wanted without offering them any real due process to contest the  
accusations against them.  That due-process-denying framework was  
legalized by the Military Commissions Act of 2006.  Many Democrats --  
including Barack Obama -- claimed they were vehemently opposed to this  
denial of due process for detainees, and on June 12, 2008, the U.S.  
Supreme Court, in the case of Boumediene v. Bush, ruled that the  
denial of habeas corpus rights to Guantanamo detainees was  
unconstitutional and that all Guantanamo detainees have the right to a  
full hearing in which they can contest the accusations against them.

In the wake of the Boumediene ruling, the U.S. Government wanted to  
preserve the power to abduct people from around the world and bring  
them to American prisons without having to provide them any due  
process.  So, instead of bringing them to our Guantanamo prison camp  
(where, the U.S. Supreme Court ruled, they were entitled to habeas  
hearings), the Bush administration would instead simply send them to  
our prison camp in Bagram, Afghanistan, and then argue that because  
they were flown to Bagram rather than Guantanamo, they had no rights  
of any kind and Boudemiene didn't apply to them.  The Bush DOJ treated  
the Boumediene ruling, grounded in our most basic constitutional  
guarantees, as though it was some sort of a silly game -- fly your  
abducted prisoners to Guantanamo and they have constitutional rights,  
but fly them instead to Bagram and you can disappear them forever with  
no judicial process.  Put another way, you just close Guantanamo, move  
it to Afghanistan, and -- presto -- all constitutional obligations  
disappear.

Back in February, the Obama administration shocked many civil  
libertarians by filing a brief in federal court that, in two  
sentences, declared that it embraced the most extremist Bush theory on  
this issue -- the Obama DOJ argued, as The New York Times's Charlie  
Savage put it, "that military detainees in Afghanistan have no legal  
right to challenge their imprisonment there, embracing a key argument  
of former President Bush’s legal team."  Remember:  these are not  
prisoners captured in Afghanistan on a battlefield.   Many of them  
have nothing to do with Afghanistan and were captured far, far away  
from that country -- abducted from their homes and workplaces -- and  
then flown to Bagram to be imprisoned.   Indeed, the Bagram detainees  
in the particular case in which the Obama DOJ filed its brief were  
Yemenis and Tunisians captured outside of Afghanistan (in Thailand or  
the UAE, for instance) and then flown to Bagram and locked away there  
as much as six years without any charges.  That is what the Obama DOJ  
defended, and they argued that those individuals can be imprisoned  
indefinitely with no rights of any kind -- as long as they are kept in  
Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama  
position and held that the rationale of Boudemiene applies every bit  
as much to Bagram as it does to Guantanamo.  Notably, the district  
judge who so ruled -- John Bates -- is an appointee of George W. Bush,  
a former Whitewater prosecutor, and a very pro-executive-power judge.   
In his decision (.pdf), Judge Bates made clear how identical are the  
constitutional rights of detainees flown to Guantanamo and Bagram and  
underscored how dangerous is the Bush/Obama claim that the President  
has the right to abduct people from around the world and imprison them  
at Bagram with no due process of any kind (click image to enlarge):

. . .

As Judge Bates noted, the prisoners shipped to Bagram actually have  
even fewer rights than the Guantanamo detainees did prior to  
Boudemiene, because at least the latter were given a sham Pentagon  
review (the CSRT tribunal), whereas the U.S. Government -- under both  
Bush and Obama -- maintain that Bagram prisoners have no rights of any  
kind.

In the wake of Judge Bates' ruling that foreign detainees shipped to  
Bagram at least have the right to a hearing to determine their guilt,  
what is the Obama DOJ doing?  This:

     The Obama administration said Friday that it would appeal a  
district court ruling that granted some military prisoners in  
Afghanistan the right to file lawsuits seeking their release. The  
decision signaled that the administration was not backing down in its  
effort to maintain the power to imprison terrorism suspects for  
extended periods without judicial oversight. . . .

     Tina Foster, the executive director of the International Justice  
Network, which is representing the detainees, condemned the decision  
in a statement.

     “Though he has made many promises regarding the need for our  
country to rejoin the world community of nations, by filing this  
appeal, President Obama has taken on the defense of one of the Bush  
administration’s unlawful policies founded on nothing more than the  
idea that might makes right,” she said.

In late February, I interviewed the ACLU's Jonathan Hafetz, counsel to  
several of the Bagram detainees, who said:

     What happened was, these people were picked up in this global war  
on terror, were brought to Guantanamo in 2004, and once Guantanamo  
became subject to habeas corpus review, the administration basically,  
the Bush administration stopped bringing people there, and started  
bringing them to Bagram, and Bagram's population has shot up, and it's  
become in some sense the new Guantanamo. . . . And so what you have is  
you have a situation where the Bush administration, was free to, and  
the Obama administration will continue to be free to, create a prison  
outside the law.

The Obama DOJ is now squarely to the Right of an extremely  
conservative, pro-executive-power, Bush 43-appointed judge on issues  
of executive power and due-process-less detentions.  Leave aside for  
the moment the issue of whether you believe that the U.S. Government  
should have the right to abduct people anywhere in the world, ship  
them to faraway prisons and hold them there indefinitely without  
charges or any rights at all.  The Bush DOJ -- and now the Obama DOJ  
-- maintain the President does and should have that right, and that's  
an issue that has been extensively debated.  It was, after all, one of  
the centerpieces of the Bush regime of radicalism, lawlessness and  
extremism.

Consider, instead, 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.

* * * * *

On a related note, the Columbia Journalism Review has a very  
interesting article tracing the origins of the "Obama/state secrets"  
controversy of the last week, documenting how it became a scandal, and  
examining which media outlets have covered it and -- more importantly  
-- have been ignoring it.



UPDATE:  One of the things I always found so striking about debates  
over Bush/Cheney executive power abuses was that Bush followers who  
admittedly had no substantive arguments to justify those actions would  
nonetheless still find reasons to defend their admired leader:  Bush  
knows more than we do and probably has secret reasons for doing it.   
Bush is a good person and well-motivated and there's no reason to  
think he's doing bad or abusive things.  Rights for Terrorists pale in  
comparsion to other more important issues.  Republican critics of Bush  
are hysterics and paranoids who are only criticizing him because they  
want to get on TV and sell books.

As of January 20, 2009, one no longer finds those claims at National  
Review, Weekly Standard, right-wing blogs and the like, but instead,  
finds them commonly expressed in Obama-defending venues and some  
liberal blogs.  Scan the comment section to John Cole's post  
criticizing Obama's Bagram position to see how frequently this mindset  
is now expressed to justify whatever Obama does -- these are just a  
representative sample of actual quotes:

         * it seems much more plausible to me that Greenwald simply  
doesn’t have access to the same facts the current DOJ does;
         * None of us have seen the actual case files and can make  
informed judgments about whether revealing the relevant information in  
particular cases would actually pose a threat to national security.  
That applies equally to Greenwald, and he must know that; it makes his  
rant silly and intellectually dishonest;
         * But Obama picks his battles. You can be upset that he  
hasn’t chosen to make this one of them (I am too), but I’m not sure  
that it’s necessarily on the same plane as the economy, health care,  
energy independence, etc.;
         * look at Obama and tell us if you see a man who is  
interested in some kind of imperial all-powerful, unchecked  
presidency. what in his background, his demeanor or his other actions  
make you think he’s that kind of guy ? what does your gut tell you  
about him? he’s a power-hungry authoritarian who is seeking to grab as  
much power as he can ? bullshit.
         * I guess Glenzilla will end up on the cover of Newsweek and  
have an appearance on Morning Joe soon since he has now said  
effectively that President Obama is worse than Bush but he is just  
about to over play his normally spot on hand with his rhetoric;
         * Let’s also keep in mind here that one of Greenwald’s jobs  
is to get people to read his blog. It’s not like he’s doing this for  
Salon pro-bono.

It goes on and on like that (with a fair number of comments who  
disagree).  My response to all of it is here.  And Cole commenter Mary  
adds some important thoughts here.

Most amazing is that the specific comment which John cut and pasted  
into his post (without approving of it) actually claims that a reading  
of the Obama DOJ's brief (here - .pdf) somehow doesn't constitute  
support for Bush's position even though (a) the Obama DOJ filed a 2- 
sentence brief in February saying they support the Bush/Cheney  
position in full; (b) the principal point of the new Brief is to argue  
that the District Judge was wrong to reject the Bush/Cheney position  
that Bagram detainees have no rights of any kind; and (c) the Brief  
repeatedly asserts pure, defining Addington/Yoo propositions about the  
unchallengeable power of the President to make decisions about  
detainees.

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.

-- Glenn Greenwald
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