Tuesday, May 26, 2009

Can you hear me now? Part two

Updated Okay, now for the bigger bit.

On May 15, Barack Obama announced plans to revive military tribunals for some prisoners at Guantánamo Bay. There were some "improved rights" for those facing those excuses for trials, but as Amnesty International said, they still
do not provide an adequate standard of justice for the detainees nor the victims of terrorism - they merely mock the U.S. Constitution, international laws and undermine fundamental human rights standards.
A year ago, Obama branded the military commissions "an enormous failure," but his new tack won praise from such as Mitch McConnell, who called it "an encouraging development," and Reagan administration alumnus David Rivkin, who praised Obama administration members for "coming to their senses."

The administration's defense of its decision included the claim that torture used on detainees "had become an obstacle" to prosecution, which is another way of saying that except for unreliable, torture-induced "confessions," they got bubkes on those people. Another part of the defense seemed less revealing but more odd:
Though some detainees, in so-called clean confessions, admitted to terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard in law enforcement.

Federal courts would likely ban such confessions, lawyers said, and, in some cases, convictions may be nearly impossible without them.
I'm sorry, but seriously, do you think courts are going to throw out non-coerced confessions because the military did not Miranda people? That strikes me much more as an excuse for continuing tribunals, not a reason. (The difference being that a reason comes before the decision and an excuse comes after.)

Odder still, the White House insists that Obama is not going back on his word.
The president "never promised to abolish" military commissions, an administration official said. But Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August.
The Obama crowd seems to have adopted another Bush practice, the "we never actually said the particular word 'imminent'" defense.

According to records at GlobalSecurity.org, there have been nearly 800 people imprisoned at Gitmo, up to 625 at one time. Over 400 of them have been released without charge; about 240 remain today. From the very beginning, all along, right up to the present, we have been told each step of the way that those who remained there were absolutely "the worst of the worst." Then we released some and then some more, while still saying those left were, well, they really were the worst of the worst. But in fact, the record shows that the vast majority of those imprisoned there posed no risk at all.

And no, the bogus reporting that "one in seven" of the prisoners released from Guantánamo "has returned to terrorism" doesn't change that one bit even if the numbers are accurate. Three reasons: One, the word "returned" is wrong; for most of those so accused, the US has no idea if they were involved in anything before they were taken. If they are involved in some anti-US actions now, it could just as well be because of their imprisonment. (Even Elisabeth Bumiller, who wrote the original story, is backing off the word "returned.") Two: The actual phrase was "terrorism or militant activity," the latter of which, undefined, could mean participating in demonstrations, making speeches, even just writing letters. Third, that's a 14% recidivism rate. The recidivism rate for those released from US prisons can reach 68% three years after release. If these people really were terrorists, who tend to be very dedicated, driven, people, you would expect a higher recidivism rate than from civilian prisons, not one one-fifth as large.

Oh, and before it gets away: After all the evidence, all the reports, all the experiences, after the illegal imprisonment, the mistreatment, the torture, the Constitutional violations, the executive-level power-grabbing, how did Obama just characterize Gitmo? As a "failed experiment." Not an outrage, a disgrace, a blot on our national soul, a nail driving into our national conscience, no. A "failed experiment."

Which could to some degree explain some of what happened during his May 20 meeting with representatives of leading civil liberties and human rights groups. It was apparently a nice show but little more; the groups came out of the meeting talking about "a robust exchange" (which sounds much like "a frank exchange of views") and by the next day were charging Obama with "mimic[king] the Bush administration's abusive approach to fighting terrorism" and were failing to find "meaningful differences" between Obama's policies and those of his predecessor.

Apparently, during the meeting
one of the attendees warned the President he was letting George Bush's policies become his own - and that Obama was not pleased by that characterization.
To which I say, tough noogies. If you don't like the comparison, stop making it a good one.

Here's another comparison he won't like: According to Marc Ambinder, writing in The Atlantic, at that meeting Obama asked the civil libertarians
to help his administration draft guidelines for military commissions - lasting guidelines, guidelines that would outlive his administration.

He was blunt; the MCs are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators.
Being equally blunt, the military commissions are nothing but an attempt to guarantee convictions. The position of the Obama administration is, essentially, that if we can convict you in a civilian court, we will - but if we can't, we'll just loosen the rules some and convict you in a military tribunal.

So what he really was offering these human rights advocates was to let them, in effect, paint the barracks in the concentration camps. Help make them look pretty, the better to hide their real purpose. Or, if you prefer and perhaps more accurately, to be the doctors at the torture sessions who salve their consciences by imagining things would be worse if they weren't there - but who actually serve to provide cover for the torturers and so better enable the torture to continue.

I mean, "lasting guidelines?" Just who is he kidding and I include the possibility that among those is himself? What "guidelines" can you lay down that can't be changed by a future administration, a future Congress, once you have established the basic legal principle? It's like the old joke - which I know you've heard but I'm going to lay out anyway - about the man who asks a woman if she'll have sex with him for $100,000.

"Well," she says, "I dunno, but.... Yeah, okay."

"What about for five dollars?" he asks.

Bristling, she snaps "You creep! What kind of woman do you think I am?"

"We've established what kind of woman you are," he replies. "We're just haggling about price."

Obama wants to establish the principle, the principle that opens the door to the sordid, the cruel, the easy, demeaning, judgment, leaving future administrations the ability to, if you will, haggle about the price.

But then, again, at a Congressional hearing last month, Secretary of War Robert Gates said
that there were "50 to 100 [detainees] probably in that ballpark who we cannot release and cannot trust, either in Article 3 [civilian] courts or military commissions." (Brackets in original.)
That is, even under the loosened rules, in some cases you can't guarantee a conviction. What do we do with those people? On May 21, in his speech on civil liberties, Obama answered that question: He intends 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."
So what was hinted at before has been made explicit now: Barack Obama wants the power to imprison people indefinitely without charge and without a right to challenge their imprisonment, based solely on his determination that they could in the future commit an act against the United States. White House reps claim this will only be applied to people now at Guantánamo - as if that made a difference - but even they admit that it could be applied against others in the future.

And of course it could. And would. It's hard to believe that something this outrageous could be seriously proposed. Ambinder referred to it as crossing the Rubicon, but a much better comparison would be walking off a cliff. This is a line that once you cross it, if this becomes established as a legal principle, you quite literally cannot go back. It is not possible. And being able to imprison without proof, detain without charge, confine without appeal, this is, again quite literally, the hallmark of tyranny. You can assume the purest of hearts among the Obama team, the very best possible intentions, and it doesn't change a frelling thing unless you can equally guarantee the nobility of every single future administration. And you know damn well you can't.

This is not going forward without opposition, albeit it largely from the expected quarters, and I agree with Greenwald that Rachel Maddow had an excellent piece on the matter. But the bottom line is that what Obama wants to do is unprecedented in our history, an expansion of executive power beyond even what the Shrub gang tried to do. The Bushites wanted to (and did) indefinitely imprison people based on what the president said they had done. Obama wants to indefinitely imprison people based on what the president says they will do. Obama wants to establish the principle, the legal principle, the legal principle that when the president says it, proof is not necessary, evidence is to be damned, the Constitution does not apply - and the crystal ball replaces the courtroom.

Welcome to change.

Footnote: Ambinder said the reference to the human rights groups remaining "outside, as agitators," was "not meant to be pejorative." He claimed "the White House does not give a scintilla of attention to its right-wing critics" but does "read, and will read," criticism from the left.
Obama, according to an administration official, finds this outside pressure healthy and useful.
As well he should - but the claim that the Obama crowd ignores the right but carefully considers the left is utterly laughable.

Updated with a Footnote, Again: While this has been about Obama's policies and proposals about Gitmo, I can't let pass without mention the incredibly stupid and astonishingly cowardly action of the Senate of passing that amendment to the supplemental appropriations bill barring the use of any funds to "transfer, release, or incarcerate any individual who was detained as of May 19, 2009, at Naval Station, Guantanamo Bay, Cuba, to or within the United States." The craven, belly-crawling vote was 90-6.

Durbin, Harkin, Leahy, Levin, Reed, and Whitehouse voted against it; Byrd, Kennedy, and Rockefeller didn't vote. Everyone else said "yes, I'm a spinelesss fraidy-cat."

On the upside, several such amendments have been offered in the House but none seem to be going anywhere. So far, anyway. The question is what happens when the bill goes to conference. House leaders, feeling no such heat from within their own chamber, may be in no mood to take the kind of swing at Obama that the amendment represents - but the Senate did vote 90-6. Still, before the vote there was a lot of whining that the funds were being withheld because Obama hadn't "presented a plan" for the prisoners and so Obama's speech could easily afford Senate leaders an out if they care to use it.

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