Obama's civil liberties speech

As usual, Obama effectively defended various ideals while advocating policies that contradict them

By Glenn Greenwald
Published May 21, 2009 2:22PM (EDT)

(Updated below - Update II - Update III - Update IV - Update V )

Obama's speech this morning, like most Obama speeches, made pretty points in rhetorically effective ways about the Constitution, our values, transparency, oversight, the state secrets privilege, and the rule of law.  But his actions, in many critical cases, have repeatedly run afoul of those words.  And while his well-crafted speech can have a positive impact on our debate and contained some welcome and rare arguments from a high-level political leader -- changes in the terms of the debate are prerequisites to changes in policy and the value of rhetoric shouldn't be understated -- they're still just words until his actions become consistent with them.

Worse, Obama repeatedly invoked the paradigm of The War on Terror to justify some extreme policies -- see my post of earlier today on this practice -- beginning with his rather startling declaration that he will work to create a system of "preventive detention" for accused Terrorists without a trial, in order to keep locked up indefinitely people who, in his words, "cannot be prosecuted yet who pose a clear danger to the American people."  In other words, even as he paid repeated homage to "our values" and "our timeless ideals," he demanded the power (albeit with unspecified judicial and Congressional oversight) to keep people in prison with no charges or proof of any crime having been committed, all while emphasizing that this "war" will continue for at least ten years.  Compare the power of indefinite, "preventive" detention he's seeking to this:

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."  Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J.) (conc. op.).

Similarly, he simultaneously paid homage to "rule of law" while demanding that there be no investigations or accountability for those who repeatedly broke the law. 

The speech was fairly representative of what Obama typically does:  effectively defend some important ideals in a uniquely persuasive way and advocating some policies that promote those ideals (closing Guantanamo, banning torture tactics, limiting the state secrets privilege) while committing to many which plainly violate them (indefinite preventive detention schemes, military commissions, denial of habeas rights to Bagram abductees, concealing torture evidence, blocking judicial review on secrecy grounds).  Like all political officials, Obama should be judged based on his actions and decisions, not his words and alleged intentions and motives.  Those actions in the civil liberties realm, with some exceptions, have been profoundly at odds with his claimed principles, and this speech hasn't changed that.  Only actions will.


UPDATE: Immediately reacting to speeches of this type, as I've done here, is always a perilous undertaking, since it generally helps to be able to reflect on what one has heard.  It ought to be apparent that my reaction to Obama's speech was fairly mixed.  There were some very well-delivered and well-argued parts -- ones that were important.  And one sees the potency of the bipartisan political opposition -- and the vindictive conniving from some of  Washington's permanent power centers in the intelligence and military community -- triggered by even by the mildest of changes, such as the closing of Guantanamo and the release of the OLC memos.  Challenging that opposition, even rhetorically, entails political costs and deserves some credit.  But I'm always going to assess Obama based on what he does, not on what he says.

Ultimately, what I find most harmful about his embrace of things like preventive detention, concealment of torture evidence, opposition to investigations and the like is that these policies are now no longer just right-wing dogma but also the ideas that many defenders of his -- Democrats, liberals, progressives -- will defend as well.  Even if it's due to perceived political necessity, the more Obama embraces core Bush terrorism policies and assumptions -- we're fighting a "war on terror"; Presidents have the power to indefinitely and "preventatively" imprison people with no charges; we can create new due-process-abridging tribunals when it suits us; the "Battlefield" is everywhere; we should conceal evidence when it will make us look bad -- the more those premises are transformed from right-wing dogma into the prongs of bipartisan consensus, no longer just advocated by Bush followers but by many Obama defenders as well.  The fact that it's all wrapped up in eloquent rhetoric about the rule of law, our Constitution and our "timeless values" -- and the fact that his understanding of those values is more evident than his predecessor's -- only heightens the concern.

So now, we're going to have huge numbers of people who spent the last eight years vehemently opposing such ideas running around arguing that we're waging a War against Terrorism, a "War President" must have the power to indefinitely lock people away who allegedly pose a "threat to Americans" but haven't violated any laws, our normal court system can't be trusted to decide who is guilty, Terrorists don't deserve the same rights as Americans, the primary obligation of the President is to "keep us safe," and -- most of all -- anyone who objects to or disagrees with any of that is a leftist purist ideologue who doesn't really care about national security.  In other words, arguments and rhetoric that were once confined to Fox News/Bush-following precincts will now become mainstream Democratic argumentation in service of defending what Obama is doing.  That's the most harmful part of this -- it trains the other half of the citizenry to now become fervent admirers and defenders of some rather extreme presidential "war powers."


UPDATE II: There's very little worth saying about the speech Dick Cheney delivered after Obama's.  It's just the same recycled, extremist neoconservative pablum that drove the U.S. into the deep ditch in which it currently finds itself.  The central Cheneyite claim -- they were right because they prevented another Terrorist attack on the Homeland -- is so patently ludicrous, since (a) they presided over 9/11; (b) the post-9/11 anthrax attacks happened "on their watch"; (c) Clinton "kept the country safe" for almost 8 years after the first World Trade Center attack (and, therefore, by Cheney's reasoning, Clinton's terrorism approach must have been optimal); and (d) it assumes without demonstrating that we're unable to defend ourselves unless we torture people, spy without warrants, and generally act like lawless, barbaric cretins.

I spent most of the first couple of years after I began writing, in late 2005, focused principally on the corruption and destruction wreaked by America's Right (with a secondary focus on their Democratic and media enablers).  I did that because, back then, that was who mattered.  I tend to ignore the Cheneyite Right now because they matter far less and their glaring flaws are manifest to most people, not because I think they're any less worthy of scorn and contempt.  


UPDATE III: Upon further reflection, and after reading D-Day's reaction to Obama's speech, one point I made in the immediate aftermath of the speech isn't really accurate.  Obama did not, as I inaccurately wrote, "demand[] that there be no investigations or accountability for those who repeatedly broke the law."  Instead, although he said that he personally is not interested in "re-litigating" those issues and opposes an independent Truth Commission, he added:

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

That seems consistent with what he has said in the past -- that it is for the Attorney General to decide who should and should not be prosecuted -- though, as D-Day points out, those statements seem inconsistent with many of Obama's actions (and recent non-public statements).  That, I think, is the key point.  As Holly McLachlan says in comments:  "Obama is a tremendous speaker. The best I've seen in national politics during my adult lifetime, without contest."  Indeed, nobody can give as persuasive and stirring a political speech as he can.  He proved that again today.  That's all the more reason to be vigilant about judging him by his actions.

UPDATE IV:  At TheWashingtonPost.com, Dan Froomkin's reaction was as mixed as mine and, independently, is well worth reading.  He praises parts of Obama's speech (the soaring rhetoric rejecting the fear-mongering over closing Guantanamo, the emphatic condemnation of Bush's interrogation techniques, his calls for more oversight on his secrecy powers), but then notes:

But in some parts of his speech, Obama appeared to be defending actions and even taking positions that didn't live up to his own professed standards.

When it came to what to do with the detainees at Guantanamo, he declared that he would work to create a system that would enable the indefinite detention without trial for a limited number of people whom the government is unable to prosecute for past crimes, but whom are nevertheless considered to be threats to the country. Even though he spoke of establishing lawful standards and periodic reviews, that's a dangerously extreme policy proposal. He once again expressed his intention to use a reformed military commission process for some detainees -- but gave no reason to think it won't run into many of the same legal challenges that Bush's process did.  He spoke of sending many detainees to face trial in federal courts -- but then promised that no one would be released who endangers our national security. The whole point of a fair judicial system is that the executive can't guarantee the results.

Obama spoke passionately about his commitment to transparency, but offered up the same lousy and unpersuasive excuses he did last week for his decision to fight the court-ordered release of more photos of prison abuse. In particular, the weight he put on his responsibility not to release information that would inflame our enemies was deeply disturbing.

He offered no additional clarity regarding his position on the state secrets doctrine, where his lofty promises still stand in dramatic conflict with what his administration is actually doing.

And in continuing to oppose the creation of an independent commission that would fully investigate the abuses of the Bush administration, he marginalized those of us who want to find out what happened as polarizers, much like those who continue to doggedly defend Bush policies. He said the recent debate has obscured the truth -- when all we want is to let it free.

The fact that a Democratic President who ran on a platform of restoring Constitutional principles -- along with huge hordes of his supporters -- will now advocate creating and institutionalizing a system of indefinite detentions with no trial and no charges of lawbreaking (not only for current detainees but also future ones) is a pretty remarkable event.

UPDATE V: I'm aware that I say this with some frequency, but I'd really be remiss if I didn't highly recommend reading what Digby has to say on what it really means that Obama and Senate Democrats are now advocating their own system of indefinite detentions without trial for what will be, by all accounts, the Permanent War on Terror.

Glenn Greenwald

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