Phil Carter's resignation from key detainee policy post

Many of the "War on Terror" policies he spent years condemning were ones expressly embraced by Obama.

Published November 25, 2009 10:26AM (EST)

(updated below)

Phillip Carter is a lawyer, a former Army Captain, a veteran of the Iraq War and a very harsh critic of the Bush administration's detention and interrogation policies.  He was a vigorous supporter of Barack Obama's campaign, and in 2008, became the Obama campaign's National Veterans Director.  In April of this year, he was appointed the top Pentagon official for detainee affairs, but yesterday, he suddenly "quit without explanation just days after Obama confirmed in an interview with Fox News in Beijing that his administration would miss its Jan. 22 Guantánamo closure deadline."

Carter said he was resigning due to "personal issues," and -- like Greg Craig before him -- remained loyal to Obama by refraining, at least thus far, from publicly criticizing any administration policies.  I have no idea what actually motivated Carter's abrupt resignation, but here's what I do know:  so many of the detention and other "War on Terror" policies Obama has explicitly adopted were the very same ones which Carter (as well as Obama) repeatedly railed against during the Bush years, in Carter's case primarily in blogs he maintained both at The Washington Post and at Slate.  Whatever else is true, the policies Obama has adopted in the last six months in the very areas of Carter's responsibilities were ones Carter vehemently condemned when implemented by Bush.

Last week, the Obama DOJ announced that it would deny trials to several Guantanamo detainees and instead send them to military commissions.  In May, 2008, Carter condemned military commissions in general as "fundamentally and fatally flawed" and argued that "the rule of law will prevail only if they are perpetually blocked."  He cited a trial in a "civilian court" (his emphasis) of accused terrorists that had just been held by France -- "using a combination of open and sealed (i.e., classified) evidence to prove the defendants' guilt in a six-day trial" -- and argued the U.S. should copy that model:  exactly the "civilian court" model the Obama administration has decisively rejected for many, perhaps most, detainees.  

More notably, in a separate post from April, Carter harshly condemned the Bush administration's decision to use a military commission to try Ahmed Khalfan Ghailani, accused of the 1998 bombing of the U.S. Embassy in Tanzania.  Carter suggested that trying detainees for "war crimes" for pre-2001 acts violates the Constitution's ban on ex post facto punishments (since the U.S. was not at war at that time), and independently, he objected to "the deliberate decision to take this case away from federal prosecutors," arguing that "our default choice for the prosecution of suspected terrorists should be federal court" because "the substantive and procedural due process granted by federal courts has strategic value -- it confers legitimacy on the outcome."  While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the U.S.S. Cole -- raising all of the serious objections Carter voiced to the Ghailani case.

Carter had also voiced serious concerns over the Bush DOJ's use of the "state secrets" privilege as a means of evading vital constitutional and other legal questions -- only to watch the Obama DOJ do the same thing.  He insisted upon a distinction between conventional wars of the past and the "War on Terror" when claiming presidential power -- pointing out that conventional wars have limits and come to an end and the "War on Terror" doesn't -- only to watch the Obama administration discard that distinction and instead adopt exactly the Bush/Cheney "war" theory as a means to detain people with no charges.  During the campaign, he expressed excitement over what appeared to be Obama's stated willingness to prosecute Bush officials for war crimes, only to watch Obama, once elected, quickly insist that we should Look Forward, not Backward.   Relatedly, Carter advocated real consequences for DOJ torture-approving lawyers such as John Yoo (specifically, his firing from Berkeley), only to watch the Obama administration take multiple steps to protects such officials from any legal consequences.  He applauded the Bush Pentagon's cancellation of a key appointment of Gen. Jay Hood to Pakistan on the ground that Hood had presided over Guantanamo and was thus "tainted by torture," only to watch Obama appoint the highly tainted Gen. McChyrstal as his commander in Afghanistan.

As I said, I have no idea whether any of this played a role in Carter's resignation, and it's certainly possible that loyalty to Obama would prevent him from voicing these complaints.  He's a thoughtful analyst who is not easily pigeon-holed and I don't want to attribute ideas to him he hasn't expressed [for instance, Carter supported the work I did on the Pentagon's military analyst program but also defended Obama's vote for telecom immunity, though on the ground that the Government should be held accountable for illegal spying (another position the Obama administration has undermined)].  But what is abundantly clear is that many of the Bush/Cheney policies which Carter found most offensive are ones which the new administration has explicitly adopted as its own.  Equally clear is that, following Greg Craig, this is now the second high-profile resignation of a relatively devoted civil libertarian in a short period of time.  Combine that with the still-missing-and-unconfirmed Dawn Johnsen, and all of this leaves those who are indifferent or hostile to civil liberties values -- people like John Brennan and Rahm Emanuel -- with even fewer counter-weights than before.


UPDATE:  James Joyner adds some thoughts about Carter's resignation, which I generally share (again, excluding speculation over why he resigned), but one his commenters claims I was wrong in what I wrote because Carter approved of both civilian trials and military courts-martial as a means of trying terrorists, and only disapproved of "special military tribunals created after 9/11."  The commenter correctly describes Carter's position, but I don't see how that makes what I wrote wrong.  Aside from the fact that Carter explicitly advocated that we follow France's example of trying terrorist suspects in "civilian courts," and separately wrote that "our default choice for the prosecution of suspected terrorists should be federal court" (links above), the military commissions used by Bush and now Obama are not military courts-martial and don't use the Uniform Code of Military Justice.  Instead, they are the very "special military tribunals created after 9/11" which the commenter indicates (correctly) Carter opposes.

On a different note, Wired's Noah Shachtman spoke to Carter today and came away convinced that his resignation was not due to policy differences with the administration, for what that's worth.  As I made clear from the start, far more interesting than Carter's real reasons for resigning is to examine the huge gap between the views of a very respected military and legal analyst who volunteered to help get Obama elected and the positions Obama has taken since becoming President.

By Glenn Greenwald

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