It's now apparent that the biggest sham in American politics is Barack Obama's pledge to close Guantanamo and, more generally, to dismantle the Bush/Cheney approach to detaining accused Terrorists. In August, 2008, the U.S. Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees -- people abducted from around the world and shipped to our prison in Cuba -- have the constitutional right to habeas corpus (a court review of their imprisonment). Then-candidate Obama issued a statement lavishly praising that 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. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach.
That was so moving.
Yesterday, the Obama DOJ -- as expected -- filed a legal brief (.pdf) which adopted the arguments originally made by the Bush DOJ to insist that detainees whom they abduct from around the world and then ship to Bagram (rather than Guantanamo) lack any constitutional rights whatsoever, including habeas review. The Obama administration is appealing from a decision (.pdf) by Bush-43-appointed District Court Judge John Bates which, applying Boumediene, held that detainees at Bagram who are originally detained outside of Afghanistan have the right to habeas review (Afghan citizens detained in Afghanistan have none, he found). In other words, after Obama praised Boumediene as "defending the freedom that violent extremists seek to destroy," he's now attempting to make a complete mockery of that decision by insisting that it is inapplicable as long as he decides to ship detainees from, say, Thailand to Bagram rather than Guantanamo. Obama apparently sees "our core values" as nothing more than an absurd shell game, where the U.S. Government can evade the limits of the Constitution by simply moving the locale of its due-process-free detention system.
Back in April, when the Obama DOJ announced it would appeal the decision, I wrote at length about the Bagram issue, and yesterday, in the wake of this new filing, numerous commentators made excellent points about these shenanigans. Spencer Ackerman notes that, the day before the ruling, the administration leaked that they were creating "new procedures" for Bagram detainees which are very similar to Guantanamo's "Combatant Status Review Tribunals" -- the very Bush/Cheney system the Boumediene court rejected as unconstitutional. This means that, at best, the Bagram detainees will now languish in prison for still more years with no habeas review while the Obama DOJ spends years litigating whether its "new system" is a sufficient Constitutional replacement for habeas review. Ackerman quotes David Remes, the legal director of the non-profit Appeal for Justice law firm who represents 19 Guantanamo detainees, as saying: "It’s another stall. And one I would have expected from the Bush administration but not the Obama administration."
Officials say the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year.
Why would the closing of Guantanamo and the shuttering of secret CIA prisons increase the "importance of Bagram" -- unless Bagram was going to replace and replicate those specific weapons, which Obama is ostensibly "ending" because they became politically unpalatable as Bush/Cheney symbols? As Davidson put it:
So closing Guantánamo increases the need for a new Guantánamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantánamo because it’s unfashionable—like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida—or because we actually don’t like extrajudicial, indefinite detention? The new measures, which the Washington Post reported as well, may at least shed some light on what’s been going on in Bagram; it’s not likely to be pretty. If Guantánamo is, to quote the poetry of Donald Rumsfeld, a known known, Bagram is a known unknown.
This is the same issue raised by Obama's demand for a preventive detention scheme: what is the point of closing Guantanamo if all of its architecture and defining traits -- indefinite detentions with no trials -- will be preserved and simply moved elsewhere? What made Guanatnamo evil and destructive isn't that it was located in Cuba. What made it such was that that -- to use Obama's melodramatic campaign language -- it was a "legal black hole." Closing it, only to re-create its core tyrannies in Bagram and re-build it as part of some "preventive detention" scheme, is worse than useless: it's actively misleading. There will be some American journalists and probably some hardened Obama loyalists who believe that closing Guantanamo -- while moving and re-creating its core features -- is some sort of "change." But the rest of the world is highly unlikely to be tricked.
The day after it was released, John McCain called Boumediene "one of the worst decisions in the history of this country" and explained:
[T[hese are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government. . . Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that.
The two candidates' starkly different reactions to that ruling was supposed to underscore one of the true differences between them: that Obama, the Constitutional Law Professor, would insist on adherence to core Constitutional liberties even while prosecuting the War on Terror, but McCain wouldn't. Yet here we are, barely more than a year later, and the Obama DOJ is filing a legal brief chock full of Bush/Cheney/McCain arguments about how "Habeas rights under the U.S. Constitution do not extend to enemy aliens detained in the active war zone at Bagram" and "No court has ever extended the Great Writ so far" and granting such rights "risks opening habeas claims brought by detainees in other theaters of war during future military actions" and doing so would pose "impediments to the military mission and threats to the national interest." As The New York Times' Charlie Savage wrote about the District Court proceeding: "The Obama administration has told a federal judge 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."
If the Obama administration were to prevail, it would render Boumediene -- and the promised closing of Guantanamo -- absurd nullities. Who needs Guantanamo if you can just ship them to Bagram instead and deny them all rights? And who cares if the Boumediene Court found that detainees have a right of habeas review if that right magically vanishes the minute you send them off to Afghanistan instead of Cuba? Here's what Obama said when he voted against the Military Commissions Act, the statute which denied habeas rights to War on Terror detainees (the same statute on which the Obama DOJ is now relying to deny those rights at Bagram):
Mr. President, I would like to address the habeas corpus amendment that is on the floor and that we just heard a lengthy debate about between Senator Specter and Senator Warner.
A few years ago, I gave a speech in Boston that people talk about from time to time. In that speech, I spoke about why I love this country, why I love America, and what I believe sets this country apart from so many other nations in so many areas. I said:
"That is the true genius of America--a faith in simple dreams, an insistence on small miracles; that we can tuck in our children at night and know that they are fed and clothed and safe from harm; that we can say what we think, write what we think, without hearing a sudden knock on the door --"
Without hearing a sudden knock on the door. I bring this up because what is at stake in this bill, and in the amendment that is currently being debated, is the right, in some sense, for people who hear that knock on the door and are placed in detention because the Government suspects them of terrorist activity to effectively challenge their detention by our Government. . . .
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.
The same person who spoke those pretty, pretty lyrics is now arguing that the U.S. Government must have the power to abduct people, ship them to Bagram, and imprison them with no court review. It's true, as Adam Serwer notes, that we cannot know for certain if the Obama administration is, in fact, using Bagram as its new Guantanamo until they stop concealing the information about the numbers, identities, and places of capture of Bagram detainees which the ACLU has been seeking. But we do know that they are desperately seeking to preserve the power to use Bagram as exactly that. When that is combined with the fact that they have already announced they will continue "renditions" -- abducting people from around the world and shipping them off to third countries with no legal process -- the danger is as severe as it is self-evident: by shipping them to Bagram, they will be denied all of the rights which they would have if brought to Guantanamo.
No wonder they want to close Guantanamo: who wants to be bothered with irritating habeas reviews -- 28 out of 33 have resulted in judicial findings that insufficient evidence exists to justify the detention -- when you can just ship them off to the Black Hole of Bagram and imprison them for as long as you want with no court interference? Apparently, what the Bush administration did that was so terrible, the heinous "shredding of the Constitution" they perpetrated, wasn't about the fact that they imprisoned people indefinitely with no charges -- but that they did it in Cuba rather than somewhere else. Who knew that such grave Constitutional transgressions -- such severe denial of fundamental rights -- could be fixed so easily with a little change of scenery?
UPDATE: Digby, citing this report from torture expert Jeffrey Kaye, notes what might very well be the most despicable document of the Bush era, which is obviously saying quite a bit. But if you close your eyes really tightly and only look forward, you may be able blissfully to ignore it all.