Greg Craig and Obama's worsening civil liberties record

A new Time account of the fall of Obama's White House counsel sheds much light on rule of law issues.

Published November 24, 2009 10:25AM (EST)

(updated below - Update II - Update III)

Over at Daily Kos, Barbara Morrill complains that The Washington Post's Richard Cohen "is Karl Rove dressed up in pseudo-sadness" because -- according to her -- Cohen today "whines that the Attorney General announced that the United States follows the rule of law" by giving trials to 5 Guantanamo detainees.  I don't disagree with Morrill's general assessment of Cohen, but his point today is actually the exact opposite of what she describes.  Cohen wasn't accusing Obama of lacking moral clarity because he's giving trials to a few of the 9/11 defendants; rather, Cohen argues that the lack of moral clarity comes from denying trials to many, perhaps most, of the detainees, who will receive only military commissions or be subjected to indefinite detention with no trials:

The Barack Obama of that Philadelphia speech would not have let his attorney general, Eric Holder, announce the new policy for trying Khalid Sheik Mohammed and four other Sept. 11 defendants in criminal court, as if this were a mere departmental issue and not one of momentous policy. And the Barack Obama of the speech would have enunciated a principle of law and not an ad hoc system in which some alleged terrorists are tried in civilian courts and some before military tribunals. What is the principle in that: What works, works?  Try putting that one on the Liberty Bell.

I point to this because it highlights an extreme logical fallacy coming from some Obama supporters ever since Holder announced the Guantanamo policy -- a fallacy that is the inevitable by-product of the administration's incoherent positions.  In order to defend Obama, it's necessary simultaneously to embrace these self-negating premises:

(1) The Rule of Law and our core political values require that terrorist suspects like Khalid Shiekh Mohammed be given trials (as Morrill put it:  "the Attorney General announced that the United States follows the rule of law");

(2) Obama is explicitly denying trials to many -- probably most -- of the Guantanamo detainees (as well as the "rendered" ones at Bagram), instead putting them before military commissions or, worse, indefinite detention with no charges;

(3) Obama should be praised as a courageous and principled leader because he's following the Rule of Law, which -- see #1 -- requires trials for terrorism suspects.

Isn't the core inconsistency of these premises obvious?  Even Richard Cohen can see it.  The administration's actual position -- we'll give trials to a handful of people we know we can convict and will continue to imprison them even if they're acquitted, while affirmatively denying trials to the rest -- is about as far from a principled or even cogent position as it gets.  Worse, it's impossible to defend Holder's decision to give a trial to Mohammed by appealing to "the rule of law" given that many of the detainees are being denied trials.  If (as Obama defenders insist) the "rule of law" requires trials, doesn't that mean, by definition, that Obama and Holder -- by using military commissions and indefinite detention -- are trampling on "the rule of law," not upholding it? 

To understand what has been happening with Obama's actions on the civil liberties front in general -- and how he came to embrace two core Bush/Cheney policies in particular (indefinite detention and military commissions) -- it's very worthwhile to read this new Time article by Massimo Calabresi and Michael Weisskopf on how and why White House Counsel Greg Craig was pushed out of his position.  In essence, Craig was the voice inside the administration insisting that Obama adhere to his civil liberties campaign pledges and dismantle the Bush/Cheney apparatus that progressives (and Obama) long claimed to find so objectionable.  But once Obama decided a few months into his presidency that he would not do so, Craig became disfavored and then, finally, pushed out:

Interviews with two dozen current and former officials show that Obama's public decision to reverse himself and fight the release of the [torture] photographs signaled a behind-the-scenes turning point in his young presidency. Beginning in the first two weeks of May, Obama took harder lines on government secrecy, on the fate of prisoners at Guantánamo Bay and on the prosecution of terrorists worldwide. The President was moving away from some promises he had made during the campaign and toward more moderate positions, some favored by George W. Bush.  At the same time, he quietly shifted responsibility for the legal framework for counterterrorism from Craig to political advisers overseen by Emanuel, who was more inclined to strike a balance between left and right.

Note how abandoning one's campaign promises and adopting Bush/Cheney detention and secrecy policies is now deemed "moderate" -- or, as the Time photo caption calls it, "pragmatic."  The White House began panicking as they were attacked by Dick Cheney and the Right for being "soft on terror," and the results were depressingly predictable:

Obama needed to regain control quickly, and he started by jettisoning liberal positions he had been prepared to accept -- and had even okayed -- just weeks earlier.  First to go was the release of the pictures of detainee abuse. Days later, Obama sided against Craig again, ending the suspension of Bush's extrajudicial military commissions.  The following week, Obama pre-empted an ongoing debate among his national-security team and embraced one of the most controversial of Bush's positions: the holding of detainees without charges or trial, something he had promised during the campaign to reject. . . . The unseen struggle took place in the spring, but the results are emerging now. On Nov. 13, Attorney General Eric Holder unveiled plans to try Guantánamo Bay detainees in federal courts, as preferred by liberals, but he also announced he would try other suspected terrorists using extrajudicial proceedings out of Bush's playbook.  The Administration is preparing to unveil its blueprint for closing the prison, but Obama will do so using some of the same Bush-era legal tools he once deplored.

None of this will be news to anyone following Obama's relentless and continuous embrace all year long of many of the "counter-terrorism" policies of the Bush administration -- ones which both he and progressives once claimed to find so intolerable.  But particularly striking is this on-the-record justification offered by a White House spokesman:

The White House says Obama hasn't changed, just adjusted. "He and the Administration have adapted as we have learned more and the issues have evolved, but there has not been an ideological shift," says spokesman Ben LaBolt.

By embracing and defending numerous Bush/Cheney policies he once deplored, "Obama hasn't changed, just adjusted."  He's learned secret things that he can't tell you about but which -- you should accept -- do justify his "adaptations."  Whenever Bush followers would run out of arguments to defend their leader's actions, that's the same rationale they'd resort to:   he knows secret things that you don't know and therefore we should trust him.   So Obama has "learned" things that caused him to abandon his vehement condemnations of indefinite detention, state secrets, military commissions and denial of habeas corpus as unjust and un-American travesties and come to embrace them as important and necessary policies?   Wow:  that must have been quite an education.  Don't he and his supporters owe George Bush and Dick Cheney a sincere apology for criticizing them all those years for these policies when, as it turns out, they were necessary and just all along?  And see this insightful argument that makes a related point.

So one of the very few pro-civil-liberties insiders with any power is now gone, replaced by a supremely partisan Washington insider with little apparent interest in those values.   One of Obama's most impressive and exciting appointments -- Dawn Johnsen to head the OLC -- has still not been confirmed despite a 60-seat Democratic Senate.  Instead, the former CIA official who defended so many of the Bush-era terrorism policies, John Brennan, remains as Obama's top counter-terrorism adviser.  And Rahm Emanuel -- he of the "build-power-by-increasing-Blue-Dogs" mentality and a driving force behind last year's Congressional enactment of telecom immunity and warrantless eavesdropping -- continues to consolidate power even in these supposedly non-political areas.  Given all of that -- and with the 2010 midterms approaching -- does anyone think these trends will improve rather than worsen?

Whether Obama has adopted every last radical Bush/Cheney terrorism policy -- he hasn't -- is not the point.  And the question of whether "Obama is as bad as Bush" -- he isn't -- is no more relevant than the excuse that Bush's torture program shouldn't be criticized because at least it never reached the level of Saddam's rape rooms and limb removals.  As even Time now recognizes, many of the policies once widely declared by Democrats to be a grave threat to the Constitution are now explicitly adopted by the Obama administration.  And it's flatly inconsistent to invoke "the rule of law" to defend Obama's decision to give trials to a few Guantanamo detainees without pointing out that he's violating that very same precept by denying trials to so many.


UPDATE:  The Nation's Jeremy Scahill reveals that the U.S. military is using Blackwater -- Blackwater -- as part of "a secret program in [Pakistan in] which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives."  McClatchy reports that Obama has made a decision to send 34,000 more troops to Afghanistan which, if true, means, as Juan Cole says, that "Gen. Stanley McChrystal has won the struggle for policy decisively."  

So, to recap:  we have indefinite detention, military commissions, Blackwater assassination squads, escalation in Afghanistan, extreme secrecy to shield executive lawbreaking from judicial review, renditions, and denials of habeas corpus.  These are not policies Obama has failed yet to uproot; they are policies he has explicitly advocated and affirmatively embraced as his own.

And if you haven't seen or read Bill Moyers' amazing -- and obviously relevant -- examination this week of how and why President Johnson escalated the war in Vietnam, I can't recommend highly enough that you do so.


UPDATE IINick Baumann of Mother Jones examines other aspects of the Time article that he calls "troubling," and makes some important points about what all of this reflects about Obama and his civil liberties commitments.


UPDATE III:  This new 7-minute video from Brave New Films and Robert Greenwald (no relation) synthesizes many of these issues, as it features interviews with Afghan citizens who were imprisoned with no charges and abused by the U.S. at Bagram for years.  I realize it's far more important to know what Les Gelb and the Brookings Institution think about such things, but every now and then it's worth hearing from Afghans about their own country, too.  In this case, their commentary about the impact of our detention policies and occupation is well worth hearing:

By Glenn Greenwald

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