Obama's "enemy combatant" policy: following a familiar pattern

In the realm of civil liberties and executive power, symbolic gestures of reversal are followed by embraces of Bush policies.

Published March 15, 2009 9:01PM (EDT)

(updated below)

Rich Lowry, National Review, Friday:

Barack Obama has perfected a three-step maneuver that could never even be attempted by a politician lacking his rhetorical skill or cool cynicism.

First: Denounce your presidential predecessor for a given policy, energizing your party’s base and capitalizing on his abiding unpopularity. Second: Pretend to have reversed that policy upon taking office with a symbolic act or high-profile statement. Third: Adopt a version of that same policy, knowing that it’s the only way to govern responsibly or believing that doing otherwise is too difficult.

Dick Cheney, Sunday, with the incomparably reverent and vapid John King of CNN:

KING (to Cheney):  Well, since taking office, President Obama has done these things to change the policies you helped put in place. He has announced he will close the Guantanamo Bay detention facility. He has announced he will close CIA black sites around the world, where they interrogate terror suspects. Says he will make CIA interrogators abide by the Army Field Manual, defined waterboarding as torture and ban it, suspend trials for terrorists by military commission, and now eliminate the label of enemy combatants.

I’d like to just simply ask you, yes or no, by taking those steps, do you believe the president of the United States has made Americans less safe?

CHENEY: I do. I think those programs were absolutely essential to the success we enjoyed of being able to collect the intelligence that let us defeat all further attempts to launch attacks against the United States since 9/11. I think that’s a great success story. It was done legally. It was done in accordance with our constitutional practices and principles.

President Obama campaigned against it all across the country. And now he is making some choices that, in my mind, will, in fact, raise the risk to the American people of another attack. . . .

Now, I think part of the difficulty here as I look at what the Obama administration is doing, we made a decision after 9/11 that I think was crucial. We said this is a war.  It’s not a law enforcement problem. . . .When you go back to the law enforcement mode, which I sense is what they’re doing, closing Guantanamo and so forth, that they are very much giving up that center of attention and focus that’s required, and that concept of military threat that is essential if you’re going to successfully defend the nation against further attacks.

Virtually from the first day Obama was inaugurated, right-wing polemicists have been alternatively accusing him of (a) radically reversing Bush/Cheney Terrorism policies, thereby ensuring that we're all about to be slaughtered by the Terrorists (see Cheney); and (b) fully embracing the Right's Terrorism approach, thereby vindicating the Bush administration's policies and exposing civil liberties criticisms of Bush as hysterical, disingenuous and wrong (see Lowry).  That these two accusations are exact opposites -- mutually exclusive -- doesn't seem to bother them at all.  Like a patient suffering from acute multiple personality disorder, the Right one minute accuses Obama of being a radical Leftist who wants to cuddle with Terrorists and the next minute accuses him of being Dick Cheney, Jr., eager to torture and detain everyone in sight.

If the last eight years have taught anything, it is that no rational person would listen to or take seriously anything Dick Cheney and his Lowry-like followers have to say.  That they're motivated by everything other than the truth when criticizing Obama only bolsters that conclusion.  But their ill motives and unbroken history of deceit doesn't mean that they're wrong in this case.  And as much as one might prefer not to acknowledge it, it is becoming undeniably clear that -- at least in the realm of civil liberties, executive power and core Constitutional rights -- Lowry's description of Obama's "three-step maneuver" is basically accurate, and Cheney's fear-mongering lament that Obama is undoing his Terrorism policies is basically false.

* * * * *

Consider three key episodes from the last week just standing alone.  On Friday, the Obama administration announced that it would no longer use the Bush-identified label "enemy combatants" as a ground for detaining Terrorist suspects, an announcement that generated headlines suggesting a significant change from the prior administration.  But the following day, after reviewing the legal brief the administration filed (.pdf) setting forth its actual position regarding presidential powers of detention, here is how The New York Times's William Glaberson accurately described what was really done:

The Obama administration said Friday that it would abandon the Bush administration’s term “enemy combatant” as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.

But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.

Bush's asserted power to detain as "enemy combatants" even those people who were detained outside of a traditional "battlefield" -- rather than charge them with crimes -- was one of the most controversial of the last eight years.  Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes -- designed to generate headlines misleadingly depicting a significant reversal ("Obama drops 'enemy combatant' label") -- while, in fact, retaining the crux of Bush's extremist detention theory.

Or consider the new policies of transparency that Obama announced during his first week in office, ones that prompted lavish praise from most civil libertarians (including me).  When it comes to a civil liberties restoration, few things are more important than drastically scaling back the Bush adminstration's endless reliance on frivolous national-security-based "secrecy" claims as a weapon for hiding virtually everything the Government does.  Excessive secrecy was the linchpin of most of the Bush abuses.

Last year, several privacy groups, including the Electronic Frontier Foundation, became alarmed at what appeared to be an emerging, new Draconian international treaty governing intellectual property, the so-called Anti-Counterfeiting Trade Agreement.  As Wired's Dave Kravets reported, the treaty as negotiated by the Bush administration -- government summaries of which were leaked to and posted on Wikileaks -- "would criminalize peer-to-peer file sharing, subject iPods to border searches and allow internet service providers to monitor their customers' communications."

Despite the fact that drafts of the treaty have been leaked; that the terms have nothing to do with national security; and that the agreement was being circulated among 27 different nations, the Bush administration -- typically enough -- rejected FOIA requests for documents pertaining to the treaty (.pdf) last January on multiple grounds, including "national security."  Based on Obama's new pledges of transparency and new FOIA policies, EFF and others re-submitted the FOIA request last month.  But in a March 10 letter (.pdf), they received a virtually identical response, this time from Obama's Chief FOIA Officer in the Office of the Trade Representative (click on image to enlarge):

There may or may not be legitimate reasons under the law to withhold drafts of this IP treaty, but the Bush-mimicking claim that doing so is justified "in the interest of national security" is, as Kravets wrote, "stunning."  And it's hard to imagine many things more patently inconsistent with the fanfare over expanded "transparency" during Obama's first week.

Finally, consider Obama's headline-generating announcement earlier this week that he would "limit" the use of presidential signing statements, one of Bush's principal instruments for literally ignoring the law.  That announcement generated much celebration among Obama supporters, such as this poetic pronouncement by a front-page writer at Daily Kos:

All hail the U.S. Constitution. It seems to be coming back to life through some vigorous resuscitation.

Yet two days later -- literally --  Obama signed a $410 billion spending bill and appended to it a signing statement claiming that he had the Constitutional authority to ignore several of its oversight provisions.  There is a very strong argument to make, grounded in clear Supreme Court precedent, that some of those provisions are actually unconstitutional, which would make the use of signing statements for those provisions probably proper.  But at least some of those provisions which Obama declared invalid are, at worst, of arguable validity and, more accurately, grounded in strong judicial precedent regarding Congressional power.  The broad powers Obama asserted for himself in that signing statement are clearly at odds with the pretty-worded policy he issued days earlier whereby he "promised to take a modest approach when using the statements"; to use them only to challenge provisions he notified Congress in advance he believes are unconstitutional; and to issue them "based only on interpretations of the Constitution that are well-founded."

Those are episodes just from the last week.  It's to say nothing of the series of events that preceded last week that shocked many Bush critics and outraged virtually all civil libertarians, including the Obama administration's embrace of the most radical version of the "state secrets" privilege; the claim that detainees in Bagram and other dark American prisons around the world have no rights of any kind to challenge their detention; the pressure exerted on Britain to keep evidence of torture concealed; and the extraordinary efforts undertaken to block judicial rulings on whether the Bush administration broke the law in how it spied on Americans.  It's true that there have been some bright spots -- the release of some of the long-concealed OLC memos; the order that the CIA no longer interrogate detainees outside of the scope of the Army Field Manual; the indictment of the last "enemy combatant" on American soil; the directive that Guantanamo be closed and that the International Red Cross be given access to all detainees -- but many of those steps are preliminary and symbolic and have become quickly overshadowed by the far more substantial embraces of Bush's executive power theories.

* * * * *

After many years of anger and complaint and outrage directed at the Bush administration for its civil liberties assaults and executive power abuses, the last thing most people want to do is conclude that the Obama administration is continuing the core of that extremism.  That was why the flurry of executive orders in the first week produced such praise:  those who are devoted to civil liberties were, from the start, eager to believe that things would be different, and most want to do everything but conclude that the only improvements that will be made by Obama will be cosmetic ones.

But it's becoming increasingly difficult for honest commentators to do anything else but conclude that.  After all, these are the exact policies which, when embraced by Bush, produced such intense protest over the last eight years.  Nobody is complaining because the Obama administration is acting too slowly in renouncing these policies.  The opposite is true:   they are rushing to actively embrace them.  And while there are still opportunities to meaningfully depart from the extremism of the last eight years, the evidence appears more and more compelling that, at least in these areas, there is little or no intent on the part of the Obama administration to do so.


UPDATE:  The following two sentences bear repeating, apparently:

Nobody is complaining because the Obama administration is acting too slowly in renouncing these policies. The opposite is true: they are rushing to actively embrace them.

If there's a way that this point can be made more clearly -- that this has nothing to do with complaints that Obama is acting "too slowly" to uproot Bush's civil liberties assaults, thus rendering a total strawman the excuse that "he's only been in office for 50 days and people can't be impatient" -- please let me know how that might be done.

Additionally, there is a large universe between (a) declaring -- as this person did yesterday -- that Obama "is likely to prove to be the greatest leader in the history of this country" and (b) equating Bush and Obama.  To criticize Obama is not to argue that he is the equivalent of Bush.  To point out the undeniable facts that Obama has actively embraced many of the most controversial Bush civil liberties and executive power abuses is not to posit an equivalence between the two administrations.  Rational people are capable of seeing more than these two options:  Obama should not yet be criticized and Obama is the equivalent of Bush.  These are just basic logical principles that shouldn't need to be stated.

By Glenn Greenwald

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