Minority Report a l’Obama
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If Obama had stated that preventive detention would not apply to anyone apprehended going forward, he would have offered a decisive – not to mention, for people like me, more acceptable – policy directive. The fact that he did not make this distinction cannot help but make one wonder whether the remedies created to address the unfortunate and unacceptable baggage of the Bush years may carry over into his own era. If that is the case, we might well ask ourselves, what other good intentions might choose to hide behind a legacy that begs for closure?
I had an interesting discussion with a close friend of mine yesterday, a former journalist who quit the business years ago to get a real job. We were talking about our early impressions of Obama, and while I kept harping on the bailouts and Obama’s bizarre decision to hand the Treasury over to Goldman, Sachs, my friend kept coming back to Gitmo. He said he could understand how Obama, a young president with no background in economics continually blasted for his lack of experience, could be bullied into handing over his economic policy to worn-out Wall Street gorgons like Larry Summers and Bob Rubin. Politically, you can see how that could happen. It’s not as if, my friend pointed out, Obama could just hand over the Treasury to Paul Krugman and Simon Johnson and expect the Democratic Party honchos to go for it without complaint. The Rubin/Summers axis was always going to be the default policy setting for a Democratic president, and it would require spending a lot of political capital to switch to a new paradigm.
Of course there’s the other notion, which is that these pro-Evremonde economic policies are actually an accurate reflection of who Obama is. Everywhere I go I keep hearing people say, “How come Obama is letting X happen or Y happen, how come he’s letting his underlings do Z? It seems so unlike him!” It reminds me of the way people view leaders in Russia. Going back centuries, Russian peasants wrote impassioned letters to the Tsar, sure he was completely unaware that his Grand Dukes were all thieves and his okhranka agents were rapists and torturers. Now that Obama’s on the scene a lot of Americans are demonstrating a similar public desire to believe in the good king. Obama seems so decent and intelligent, it’s hard to imagine that his act is just a big sales job, that he’s really just a smooth-talking shill for a bunch of Wall Street bankers and Pentagon generals. So people tend to scramble for the exculpatory explanation: he’s being tricked, he’s unaware, his hands are tied, and so on.
You can sort of see that, maybe, with the economic policies. If you were bent on clinging to the good-king fantasy, you could hold your nose and imagine that Summers/Rubin cast a spell on poor Barack. But this Gitmo thing is different. It’s not like Barack Obama doesn’t know what habeas corpus is. The guy was a freaking constitutional law professor (or “senior lecturer,” if that controversy over his academic title still rankles you). And yet Obama seems to be determined to preserve the whole concept of preventive detention, which is every bit as jarring and upsetting as the preemptive invasion concept Bush introduced. In fact this whole Gitmo episode should serve as a reminder that the upper crust of the current Democratic leadership has not, for the most part, even publicly renounced preemption.
While John Edwards a couple of years ago said that preemption was “wrong on the merits, wrong on the morals, wrong for America,” both Hillary and Obama have carefully avoided taking any public stance against it. True, back during the original war vote, Hillary did say that her “yea” vote should not be taken as a “vote for any new doctrine of preemption” — except that that’s exactly what that vote was, an endorsement of the preemption policy outlined in Bush’s notorious “National Security Strategy of the United States” paper. Moreover Hillary’s top foreign policy staffer at the time, Lee Feinstein, wrote soon after that “the biggest problem with the Bush preemption strategy may be that it does not go far enough.” When Kerry ran for president he specifically endorsed pre-emption, only parsing it with one of his classic waffle jobs, saying that any decision for a pre-emptive strike would have to pass some kind of unspecified “global test.” And Obama has never really gone near the topic: he did talk about the U.S. having the right to respond to “imminent” threats, but he’d always seemed to mean a genuinely imminent threat, not the “They might have some kind of unnamed weapon with or without a delivery system in thirteen or fourteen years, we better invade now” standard that Bush went by.
Getting back to preventive detention: it’s important to remember that what’s going on at Gitmo has to be construed as a specific, public endorsement of preventive detention. For we all know that there has always been preventive detention of one sort or another in this country, ever since America became a world power: suspected spies whisked off in the middle of the night, political dissidents in foreign countries busted on trumped-up charges and quietly flown to someplace like Syria or the Phillipines for the car-battery-to-the-balls treatment. Hell, even here on American territory, we have a legal framework through FISA to quietly do all sorts of things to suspected miscreants. Where there is a will, and a loathed enough suspect, there has always been a way in America, no matter what the actual law is or has been.
At the same time we’ve tried never to allow ourselves to openly legalize these practices. When we have, like during the era of the Palmer raids for instance, it’s always been a black time our history. Keeping preventive detention and extrajudicial punishment illegal puts a brake on their use: it forces the government that would use these tactics to enter a legal gray area, to risk scandal and exposure, and to take all the responsibility for crossing the line. When a thing is illegal and has to be hidden from the general public, one assumes that governments will try to exhaust every conceivable alternative before resorting to its use, or better yet will avoid using it at all. But making it legal not only transforms preventive detention into a part of all of us, a conscious expression of who we are, it suddenly makes it an easy option for governments to choose.
If they don’t have to hide it, and just throwing velvet bags over suspects’ heads and carting them to Gitmo (or whatever replaces Gitmo) remains easier than crafting a case and building evidence and making a real arrest, the government will use the former technique more and more, until eventually it becomes routine. And next thing you know it’ll become a basic fact of our society, this idea that our government snatches people off the streets and dumps them in faraway jails without trials.
I guess what I’m trying to say is that I don’t get what Obama is doing here. He could have closed Gitmo, created some sort of tribunal system for the current inmates, and then stood up on a pedestal and announced that the United States is no longer a country that detains people without due process. And as soon as he finished that speech he could have gone on doing what presidents have done for decades before Bush, finding the soft spots in international criminal/military law to basically arrest and detain anyone whom they considered a genuinely dangerous suspect. But what he’s done instead of that, seemingly, is specifically endorse preventive detention. He apparently is anxious for people to know that that is in fact what he stands for.
Which to me is just… weird. I don’t get it. What does he gain from making this move? I know what we lose, but what does he gain? Votes in Alabama three years from now? Is that really what this is all about?
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I think it’s laudable that Obama’s willing to deal with dangerous-but-not-criminal detainees openly. He understands that the rules have changed and that we need to build the legal framework to deal with people who are openly dangerous to the US but cannot be charged with a crime and officially detained.
For example: what do we do with a detainee that openly expresses his allegiance to Al Qaeda and admits his intention to return to them if released? He hasn’t actually committed a crime, so we can’t charge and detain him. But we know, by his own admission, that to release him is to release an overt threat to the security of the US and its citizens.
Obama’s not a dupe, and it’s also not the liberal crusader that many expected him to be. He’s smart, and open, and honest, and is willing to take an unpopular stand if he believes that it’s necessary. I don’t always agree with him, but I do generally think he’s working in good faith.
The answer to your question is pretty simple; Obama is just afraid of what the Republicans might say if he starts reversing the policies that have ‘kept us safe.’ Like most of the Democratic leadership, he defers to the conventional wisdom that Republicans are the national security experts, so he doesn’t want to do anything that might upset them. They might start making ads after all.
The craziest part is that while he thinks he’s heading off Republican criticism by doing stuff like this, the Republicans are still going to flog their talking points about how weak he is and how he’s putting all of us in danger anyway. This sort of thinking is what had him voting for that ridiculous FISA legislation last summer and it’s what is behind his escalation plans in Afghanistan. He wants to be a tough guy as the Republicans define tough guys. But no matter what he does, they’ll never be satisfied and will keep up their indignation, which will only result in the President moving more and more to the right.
This is what’s always bothered me about Obama. He seems to think that if he does the Republicans a few favors, then they’ll respond in kind. I don’t know how many goose-eggs they’ll have to put up before he realizes that the Republicans are only interested in campaigning against him, but I guess we’re not there yet. Every time Obama ‘reaches across the aisle,’ he’s greeted with a chorus of spray-farts. And he keeps going back for more.
“What does he gain from making this move? I know what we lose, but what does he gain? ”
I’m gonna go with: he wants the power to detain people indefinitely? Make sense?
Yes, but my whole point is that he could do that anyway. We’ve always done that. Maybe we don’t assassinate foreign undesirables with the regularity we used to, but it’s just not hard for the United States to find a “legal” way to indefinitely detain pretty much anyone it wants to.
My point is that all Obama gains by openly endorsing this policy is the political benefit of having taken that stance in public. He doesn’t get much more in the way of actual “power” to detain people. Do you really think U.S. troops in Afghanistan and Iraq will be hampered in their efforts to detain belligerents by a base closing in Cuba? Gitmo is much more a symbol than an enforcement tool; Obama’s move is purely symbolic.
In response to another comment. See in context »When the former Village Idiot of Crawford, Cheney, and Rumsfeld all go missing we’ll know what Obama is up to. I know that isn’t going to happen but we all have our fantasies, don’t we?
When was the last time someone with enough ambition to get himself elected President actually surrendered some Presidential authority? Richard Nixon did more to rebalance the “co-equal” branches of government than any president in the 20th century. He did it unwittingly, but nonetheless it was his administration that finally forced the Congress to grow a pair, as it were.
Sadly, with the now smoothly shaved rump of the GOP whining like a bunch of pussies at every perceived slight, they spend most of their day defending war criminals who should probably be given the bastinado on a regular basis. Jesus Babbling Christ! That twelve sandwich eating atavist Newt Gingrich is calling an Appelate court Judge a racist because she was mean to white boys. This leads me to conclude that we have no serious opposition party in the Congress so we have to rely on Harry Reid and Nancy Pelosi to keep Obama in check. (Don’t get me wrong, I like Pelosi, I just don’t see these two being able to keep the President in check. Obama has got more political skills than the entire Democrat congressional caucus combined and has some sort of weird Obama-fu or Rope-a-dope political shit he seems able to pull whenever he’s in a tight spot. Shit just ask HRC how good the guy is!)
I voted for Obama but am plenty willing to believe his intentions aren’t all pure and good. It’s difficult to really believe he doesn’t believe in the rule of law and checks on executive power, however, when one considers the kind of people he appointed to OLC. It’s hard to believe the worst in light of a move like that, which leaves me unsure what to make of this.
The only explanation I can think of that is both morally defensible and possibly credible is that Matt is right: it has been ever thus, and we have always reserved the right to grab bad guys off the street and whisk them away to torture-land. What Obama’s trying to do is to bring it out into the light so as to provoke debate and get a set of rules written so as to legitimize and regulate the practice.
Please note, I do not actually think that this is the case. Personally, I believe the truth to be far more nefarious. But it is at least possible.
[...] Taibbi has an interesting post that’s a bit long to properly quote, but I’ll give it a shot with some splicing and [...]
“He hasn’t actually committed a crime, so we can’t charge and detain him. But we know, by his own admission, that to release him is to release an overt threat to the security of the US and its citizens.”
There are many people all over the world who could be described as ‘overt threats to the security of the US and its citizens.’ Are we going to throw them all in jails?
I confess to being puzzled by all the lefty head-shaking over Obama. You were sold a bill of goods, with your own enthusiastic cooperation. That’s all. No mystery involved. However, because lefties won’t admit to themselves that they were played for suckers, we get earnest and well meant defenses of the indefensible like the above. At least if McCain had won we would have been spared that.
(And he wasn’t “bullied” into hiring Summers and Geithner. By all accounts he developed a total mancrush on both of them.)
I wanted to thank you for going on Bill Maher and pointing out the illegality of the torture program and the message a lack of legal action sends, and also for a couple of your recent posts both on Gitmo and the interrogation methods. I’m appalled at just how many journalists/political figures are willing to slip this under the rug in order to preserve President Obama’s “good guy” image.
I myself was one of those naive young people who, despite having read all of your novels and probably should know better as a result, had a whopping amount of faith in Obama, and I can’t begin to express how disappointed I am in many of his decisions. To me, these aren’t sideshow issues as they get at the core of what President Obama has as values, and what he’s willing to do in upcoming conflicts, etc. Not to mention, where he sets the bar for the next president. While I don’t hate all of his policy decisions or the man himself, and I don’t come close to thinking a McCain/Palin presidency would have been better; I can safely say any high hopes I once had for this administration have shriveled up faster than a plum on tar in full sun. Many may dismiss me as being one of those supporters who is simply never pleased with any candidate, but I genuinely thought at least some of my expectations would be met on these issues- and, like you said, detention sans due process would once again become one of those scandalous dark secrets, as oppose to fucking policy.
I wonder if those votes in Alabama you mentioned are even possible given his race and that the socialist/Marxist name dropping became such a preposterously widespread veil for racism. (Not in every instance, obviously, as some people genuinely believe he’s the second coming of Karl himself, just as many racists found ‘Muslim’ was an appropriate means of veiling their racism and didn’t feel the need to call upon dead communists to do so.)
Mr Taibbi,
You seem to be confusing Hollywood movies with the real USA…We do not and have not EVER rounded up persons in this country in the dead of night and whisked them away to undisclosed locations..but hang around, your Messaiah, if allowed to continue on his current path, will definitely make that happen. Be sure to provide the poor misjudged detainees in GITMO your home address so they can move next door to you when they are released, then you can spend your life looking over your shoulder always wondering when they will strike again.
Okay, right. So we’ve never had detainees sent to places like the Mulhaq al-Mazra prison in Egypt, or Bagram in Afghanistan, or the “Palestine wing” of the Syrian intelligence jail, or to foreign jails in Oman, the Phillipines, Qatar, or Azerbaidjan, or Thailand. Let me ask you something: the U.S. has admitted to arresting over 4,000 al-Qaida suspects alone. Only 350 are at Gitmo. Where do you think the rest are? Florence, Colorado?
And Jesus, nobody is saying that anyone wants real terrorists let loose. All we’re saying is that there has to be some kind of process. Even Nazi prisoners were held under the Geneva convention. Would you be in favor of the police being allowed to simply pick people up off the streets in the U.S. and throw them in jail forever without any kind of due process? If your answer is yes, that’s one thing — you’re basically crazy if your answer is yes. If your answer is no, then how is it any different in a foreign country? You’d really be in favor of allowing the CIA to wander the earth throwing people in vans and disappearing them forever, without any sort of trial? Really?
In response to another comment. See in context »Mr. Alwaysvote,
You seem to have forgotten about Jose Padilla. Yes, rounded up in the dead of night and whisked away to an undisclosed location. No need to hang around, your savior in chief already made this a reality.
Oh, and I’ll let you in on a little secret. If the Guantanamo detainees are brought to US soil they will not be released to live amongst the citizenry. But I’m assuming you know this, and are just being ridiculous. The supermax prison where we currently keep serial killers is a little more secure than your neighbor’s double-wide.
In response to another comment. See in context »I don’t agree with his apparent thinking on the topic of what to do with these detainees at all, but I also don’t think his first priority is just to shove them in a legal black hole. If he wanted to do that, like you said, he wouldn’t have gone about it this way.
I suspect he thinks (and I suspect he’s wrong) that there is a legal way to go about this, that would be somehow in keeping with current legal structures. In fact, I think he has the prisoner of war paradigm in his head about these men. And I think he basically said he wants Congress to help him figure out a way to square the circle to make it all kosher.
And that’s what I think he gets from doing it openly like this. He gets an above-board debate about it. That way, if he does do what he feels he’s going to need to do, he’ll be able to say it’s all within the law.
Now I just hope that his thinking is corrected by Congress.
He got caught out by his pre-election pledge to close Guantanamo. He realized too late,that this would mean he’d have to endorse preventive detention. Or perhaps he imagined that most of the people he couldn’t just let go from Grantanamo he could fit into other procrustean legal beds that would allow them to be held.
[...] Taibbi had an interesting post up this week. He was puzzling over just why Barack Obama (freshly inaugurated, insanely popular, Savior of the [...]
If you look at Obamas actions(more truthfully non-actions) since the election with the idea in mind that maybe, just maybe he is the same kind of puppet as Bush, Clinton, and the rest, working for the same masters, it all becomes alot easier to understand. My bet is that when Obamas run in office is finished and you look back and compare his policies with Bush’s, the differences will be slight
[...] “good king fantasy” regarding Obama while failing to see that he’s merely “a smooth-talking shill” for the Power Elite who is amassing the powers of a [...]
[...] Via Taibblog: Minority Report a l’Obama [...]