The Obama justice system

Due process is seen as window dressing to enable the president to detain whomever he wants for as long as he wants

Topics: Barack Obama, Washington, D.C.,

The Obama justice system

(Updated belowUpdate IIUpdate IIIUpdate IVUpdate V)

Spencer Ackerman yesterday attended a Senate hearing at which the DOD’s General Counsel, Jeh Johnson, testified.  As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial.  About this assertion of “presidential post-acquittal detention power” — an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties — Ackerman wrote, with some understatement, that it “moved the Obama administration into new territory from a civil liberties perspective.”  Law professor Jonathan Turley was more blunt:  ”The Obama Administration continues its retention and expansion of abusive Bush policies — now clearly Obama policies on indefinite detention.” 

In June, Robert Gibbs was repeatedly asked by ABC News‘ Jake Tapper whether accused Terrorists who were given a trial and were acquitted would be released as a result of the acquittal, but Gibbs — amazingly — refused to make that commitment.  But this is the first time an Obama official has affirmatively stated that they have the “post-acquittal detention” power (and, to my knowledge, the Bush administration never claimed the power to detain someone even if they were acquitted).

All of this underscores what has clearly emerged as the core “principle” of Obama justice when it comes to accused Terrorists — namely, “due process” is pure window dressing with only one goal:   to ensure that anyone the President wants to keep imprisoned will remain in prison.  They’ll create various procedures to prettify the process, but the outcome is always the same — ongoing detention for as long as the President dictates.   This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday — when he described the five categories of detainees and the procedures to which each will be subjected — it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we’ll give real trials only to those detainees we know in advance we will convict. For those we don’t think we can convict in a real court, we’ll get convictions in the military commissions I’m creating. For those we can’t convict even in my military commissions, we’ll just imprison them anyway with no charges (“preventively detain” them).

After yesterday, we have to add an even more extreme prong to this policy:  if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we’ll still just keep them in prison anyway by presidential decree.  That added step renders my criticism of Obama’s conception of ”justice” even more applicable:

Giving trials to people only when you know for sure, in advance, that you’ll get convictions is not due process. Those are called “show trials.” In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped “system of justice” is hard to imagine.

In today’s Wall St. Journal, which also reported that “the Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges,” Rep. Jerry Nadler was quoted as saying something quite similar about the Obama approach:

“What bothers me is that they seem to be saying, ‘Some people we have good enough evidence against, so we’ll give them a fair trial. Some people the evidence is not so good, so we’ll give them a less fair trial. We’ll give them just enough due process to ensure a conviction because we know they’re guilty. That’s not a fair trial, that’s a show trial,” Mr. Nadler said.

Exactly.  Show trials are exactly what the Obama administration is planning.  In its own twisted way, the Bush approach was actually more honest and transparent:  they made no secret of their belief that the President could imprison anyone he wanted without any process at all.  That’s clearly the Obama view as well, but he’s creating an elaborate, multi-layered, and purely discretionary “justice system” that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.   And for those who — to justify what Obama is doing — make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?

Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee.  That’s one of those propositions that ought to be too self-evident to need stating.

* * * * *

Several related points:  Spencer also notes that Johnson testified yesterday about the possibility that Guantanamo might remain open beyond January, 2010 — the date Obama, to much fanfare, established as the deadline for closing that prison.  That decision is one of the very few to which Obama defenders can cling in order to claim there are significant differences between his approach to these issues and the Bush/Cheney approach. 

Meanwhile, former Guantanamo detainee Binyam Mohamed is engaged in what The Guardian calls “an urgent legal attempt to prevent the US courts from destroying crucial evidence that he says proves he was abused while being held at the detention camp detainee.”  The photographs — which show Mohamed after he had been severely beaten and which he claims was posted on the door to his cage “because he had been beaten so badly that it was difficult for the guards to identify him” — is scheduled to be destroyed by the U.S. Government, an act The Washington Independent‘s Alexandra Jaffe calls ”another black mark on the Obama administration’s promised transparency.”

Finally, I was on an NPR station yesterday in Seattle to discuss NPR’s ban on the use of the word “torture” to describe Bush administration interrogation tactics.  I originally understood that I would be on with NPR Ombudsman Alicia Shepard, but alas, it turns out that she agreed only to be on the show before me, so as not to engage or otherwise interact with me, so I was forced to listen to her for 15 minutes and wait until she hung up before being able to speak.  The segment can be heard here, beginning at the 14:00 mark (though the quality of the recording is poor in places).   

The most noteworthy point was her explicit statement (at 17:50) that “the role of a news organization is to lay out the debate”; rarely is the stenographic model of “journalism” – ”we just repeat what each side says and leave it at that” — so expressly advocated (and see Jon Stewart’s perfect mockery of that view).  She also said — when the host asked about the recent example I cited of NPR’s calling what was done to a reporter in Gambia “torture” (at the 20:20 mark) — that NPR will use the word “torture” to describe what other governments do because they do it merely to sadistically inflict pain on people while the U.S. did it for a noble reason:  to obtain information about Terrorist attacks.  That’s really what she said:  that when the U.S. did it (as opposed to Evil countries), it was for a good reason.  Leaving aside the factual falsity of her claim about American motives, Shepard actually thinks that “torture” is determined by the motive with which the suffering is inflicted.  The connection between the Government’s ability to get away with these things and the media’s warped view of its role really cannot be overstated.


UPDATE: The ACLU’s Ben Wizner emails to correct one point I made:   the Bush administration, like Obama is doing now, did claim the power of post-acquittal detentions.  Ben writes:

Glenn – You’re right that this is disgraceful, but not that it’s new. The Bush gang claimed the same authority in connection with Gitmo military commissions, which is why, paradoxically, the only way to get out of Gitmo if you were charged in a military commission was to plead guilty and strike a deal that included repatriation (as David Hicks did).

This is from an LA Times op-ed I wrote in 4/07:

Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months — a sentence more in keeping with a misdemeanor than with a grave terrorist offense.

This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released.  In Guantanamo, the accused must plead guilty to be released — because even if he is acquitted, he remains an “enemy combatant” subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.

So this is (another) one of those cases where Obama is embracing a radical Bush theory of power rather than inventing one of his own.


UPDATE II: The Weekly Standard‘s Michael Goldfarb, a former McCain aide, is someone who believes that the President possesses what he calls “near dictatorial power” when it comes to national security.  He has repeatedly praised Obama for maintaining Bush Terrorism policies.  But even Goldfarb is uncomfortable with Obama’s assertion of “post-acquittal detention power”:

I understand and respect the president’s decision to disregard his left-wing critics and embrace the same policies of indefinite detention and denial of due process that made the Bush-Cheney administration so effective in preventing another terror attack. I support those policies because as illegal enemy combatants, terrorists have no right to due process. But, as Glenn Greenwald points out, there is something Orwellian about this administration’s attempt to have it both ways — to get the credit for putting detainees on trial only to disregard the outcome if they don’t like the verdict. Obviously the Bush administration would have done the same if they thought for a second that they could get away with it. But even the Bush OLC wouldn’t have dared suggest detaining individuals who had been acquitted on all charges.

As Ben Wizner’s email in the prior update reflects, it’s far from clear that “even the Bush OLC wouldn’t have dared suggest detaining individuals who had been acquitted on all charges.”  Still, if your assertions of executive power and denial of due process to Muslim detainees even make Michael ”near dictatorial power” Goldfarb uncomfortable, that’s a pretty compelling sign that you’re way, way out there.


UPDATE III: When Kevin Drum read the above summary I wrote of how Alicia Shepard justified NPR’s using “torture” to describe the acts of Gambia but not the U.S., he said he assumed I was exaggerating, because nobody could actually believe the explanation I attributed to Shepard — that they do it for bad reasons and it’s therefore “torture,” while we do it for noble reasons and therefore it’s not.  But then he listened to the show and transcribed Shepard’s statement.  Kevin then wrote:

Wow. She really did say that, didn’t she? When other people do it for other reasons, it’s torture. When we do it for our reasons, it’s not.

You don’t usually find people willing to say this quite so baldly. Congratulations, Alicia Shepard.

Along those same lines, Jesse Levine, a long-time reader who is a government lawyer, emailed this to me today:

I just had the most bizarre conversation with Alicia Shepard. I called and told her I had been following the contretemps over NPR’s use of the word torture and wanted to confirm that she had said what you had reported about her view of sadism vs. intelligence gathering as defining torture. She said she did and that it was a political question because it is torture on one hand and “tactics” on the other. I said I understood there was a political debate about whether torture was justified in certain circumstances, but again asked if an act itself was torture; specifically asking, “if you cut off someone’s hand is it not torture whether motivated by sadism or intelligence gathering?” She said it was and then quickly shifted back to the torture vs. tactics meme. I gave up.

I’ve been going back and forth on whether Shepard’s deficiency is primarily one of intellect or whether she’s just a hard-core Cheneyite.  I’m now convinced — after her statements yesterday on that show I did with after her — that it’s both.  

Anyone who can say that what we do is not “torture” because we do it for the right reasons — whereas it’s “torture” when those other countries do it because they’re sadistic and bad — is someone who is devoid of both basic reasoning skills and good motives.  This Saturday, at 2:30 p.m., in Washington, DC, Shepard will be appearing at this event to talk about “the role of the Ombudsman.”  It’s open to the public.  I don’t know if there will be opportunity for questions, though one can always create that opportunity if one is so inclined.


UPDATE IV:  From Alice in Wonderland, Chapter 12:

“Let the jury consider their verdict,” the King said, for about the twentieth time that day.

“No, no!” said the Queen. “Sentence first — verdict afterward.”

“Stuff and nonsense!” said Alice loudly. ”The idea of having the sentence first!”

“Hold your tongue!” said the Queen, turning purple.

“I won’t!” said Alice.

“Off with her head!” the Queen shouted at the top of her voice.

The Queen’s pronouncement — “Sentence first — verdict afterward” — is a fine expression of Obama’s approach here:  these prisoners are decreed to be Dangerous and Guilty and are sentenced to prolonged, indefinite, imprisonment and must not be released; now let’s tailor a process for each of them to ensure that this verdict is produced.



UPDATE V:  Just compare Alicia Shepard’s justification for why NPR calls Gambia’s tactics “torture” but not America’s — they do it to inflict pain whereas we (supposedly) did it to extract information — to the definition of “torture” in the Convention Against Torture, to which the U.S. has been a siganatory since 1988:

Part I, Article I:  For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The entire civilized world has long defined “torture” to include tactics used to obtain information.  By virtue of Article VI of the U.S. Constitution, that definition is binding law (“supreme law”) in the U.S.  But to NPR’s Ombdusman, it’s not “torture” if they are simply — as she put it — “tactics used to get information.”  Those are the depths to which NPR is willing to sink in order to twist language and protect the Bush administration and the U.S. Government.

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows



Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>