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Barack Obama is cerebral, cool and detached … from his own agenda

The past week has treated us to an onslaught of “Barack Obama: WHAT WENT WRONG?” stories and columns. This seems premature to me — the big items of his presidency are still in flux — but the combination of Scott Brown’s election, Obama’s falling poll numbers and his first anniversary in office make it an irresistable narrative.

Picking out three big items from the first year of his presidency, it’s easy to see a troubling pattern:

• THE STIMULUS: Barack Obama announced the broad parameters of the stimulus package … then let Harry Reid and Nancy Pelosi hash it out, making concessions to Republicans on taxes and the size of the bill in exchange for, well, almost nothing.

• THE HEALTH CARE BILL: Barack Obama announced the broad parameters of the bill, but made it clear that he wouldn’t absolutely go to bat for certain parts — like a public option — that he supposedly supported. He let Harry Reid and Nancy Pelosi hash it out and drag it out until the sheer amount of time had exhausted the public’s patience.

• CLOSING GITMO: Barack Obama announced he’d close Gitmo in a year — then broke the promise when he ran into opposition fro Congress, even getting rid of the official whose job it was to get Gitmo closed.

The problem is not that President Obama seems cerebral, cool and detached. It’s that he seems cerebral, cool and detached … from his own agenda. We’ve seen him give speeches, on occasion, but we haven’t seen him roll up his sleeves and fight for his own administration’s efforts. Perhaps this is all going on behind the scenes, but we as a public need to see some more of it.

With rare exception, it seems he’s not willing to work with Congress so much as he’s ready to defer to Congress. And there’s no item that’s not negotiable, it seems. Maybe this is pragmatic. But a year into his presidency, it’s more difficult than it has ever been to say what line in the sand Barack Obama won’t cross, what he definitively stands for. He’s one-quarter of the way into the only four years he’s guaranteed to hold the White House; it’s time to stop being a blank slate upon whom the voters can project their dreams and time to deliberately make a few people angry.

Barack Obama will create a kangaroo court for suspected terrorists

Washington Post:

A Justice Department-led task force has concluded that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war, according to Obama administration officials.

The task force has recommended that Guantanamo Bay detainees be divided into three main groups: about 35 who should be prosecuted in federal or military courts; at least 110 who can be released, either immediately or eventually; and the nearly 50 who must be detained without trial.

Administration officials argue that detaining terrorism suspects under Congress’s authorization of the use of force against al-Qaeda and the Taliban is legal and that each detainee has the right to challenge his incarceration in habeas corpus proceedings in federal court.

The Obama Administration will sort out the guilty from the innocent. It will assign life sentences to the guilty. And only then will it allow trials for some of the guilty — those few it feels it can reliably convict, I’m sure. This is more about putting on a show than it is about either protecting Americans or standing up for our civil libertarian traditions. And that’s kind of ugly.

I want my country protected. I don’t want terrorists roaming free. But a government that assigns itself the power to assign guilt and punishment prior to a trial, or without a trial, concerns me greatly. I’m told by my security-minded friends that these rules don’t apply to American citizens, but to foreigners — who have no Constitutional rights — engaged in combat against Americans. Perhaps. But it’s a slippery slope.

Guantanamo detainees headed to Illinois prison; now what about Bagram?

And that’s good news. The creation of the detention camp at Gitmo was, frankly, a sign of U.S. lawlessness in the “war on terror,” an effort to circumvent both federal and international law regarding the treatment and processing of prisoners. Though the Supreme Court has effectively pushed back against that legal thinking, resettling those prisoners on American soil is a sign of the government’s commitment to play by the rules instead of pretending the rules — and the prisoners they apply to — don’t officially exist.

The bad news: There’s another Gitmo out there. It’s called Bagram Air Force base, and it’s located in Afghanistan. As I explained a few months ago: “The U.S. is free to hold prisoners of war at Bagram without giving them habeas corpus rights. The problem in this particular case is that several prisoners — non-Afghanis — were captured outside Afghanistan and brought to Bagram. The Obama Administration is asserting these prisoners don’t have the right to challenge their detentions either. It is saying, then, that it can arrest people anywhere in the world — not merely a battlefield — and hold them without any kind of due process rights. … As it stands, it now looks very much as though the Obama Administration made political and cosmetic decisions about the future of Gitmo without throwing away the wrongheaded ideas that were the foundations of its creation.”

That’s still right. Closing Gitmo will be a great symbolic victory for America, a sign that we re-affirm our values and commitment to the rule of law. But that victory will be short-lived if the government continues on its course at Bagram.

Obama: Gitmo won’t close on time

I guess this means I officially lose my bet with Ben Boychuk:

BEIJING — President Obama directly acknowledged for the first time Wednesday that the prison facility at Guantanamo Bay will not close by the January deadline he set, but he said he hoped to still achieve that goal sometime next year.

Obama refused, however, to set a new deadline.

When Obama took office and immediately pledged to close Gitmo within a year, I was — to put it mildly — thrilled. I thought it was a bold declaration of values and intent. But boldly declaring your intent makes it pretty easy to fail.

For what it’s worth: I still think closing Gitmo is a net plus to America. In a war against lawless, stateless terrorists, it seemed to me we ceded some necessary moral high ground by trying to create a lawless, stateless base to contain them. It told the world that we didn’t really believe in our own civilization. In a battle that is just as much about ideas as it is about bullets and bombs, it was a crucial concession by the Bush Administration. Reversing that concession, it turns out, is more difficult than I thought it would be.

Gitmo: Not quite closed for business

I bet a conservative friend a small bottle of nice scotch that Gitmo would be closed by the Obama Administration’s one-year deadline. Looks like I’d better start shopping.

Prosecuting the torturers

That’s the topic of my Scripps column with Ben Boychuk this week. My take:

If Republicans like Dick Cheney had their way, there would be no law that CIA agents — or their White House bosses — couldn’t break in the name of national security.

Eric Holder isn’t going after officials, such as Cheney, who authorized the “enhanced interrogation methods” that probably broke domestic and international laws against torture. Holder isn’t even going after very many agents who participated in the interrogation program. Instead, he’s going after the agents who went way too far — the ones who broke the Bush administration’s already-expansive rules about what constituted torture.

The result? We know that some detainees died in custody, and that others suffered mightily. There will be few tears shed, of course; most of these men were terrorists. But our treatment of them is a stain on the national honor.

What Cheney is saying is that even the agents who broke Bush administration rules “deserve our gratitude” and shouldn’t be prosecuted. But if CIA agents shouldn’t be held accountable for breaking the laws, orders and legal guidance set out by Congress and the White House, how can America possibly put limits on the actions of its agents? And how can we trust our government not to misuse that awful power? We can’t.

The truth is that Holder’s investigation doesn’t go far enough. It risks scapegoating lower-level CIA employees who were carrying out orders, while Cheney and others who gave those orders face no consequences. That’s unfair and unfortunate. But Cheney and his fellow Republicans are suggesting that utter lawlessness is acceptable in the name of defeating terrorists. It’s not.

Just in case it isn’t clear, what I’m saying is this: The criticism by Cheney and other Republicans of the investigation gives lie to their assertion that all the Office of Legal Counsel memos justifying torture were actually efforts to keep the CIA within strict legal limits to avoid torture. If that were really the case, then Cheney et al would agree that agents who crossed the lines laid down by the Bush Administration should face sanction of some sort. Instead, such agents “deserve our gratitude.” It’s further proof — if any was needed — that the OLC memos were an exercise in bureaucratic ass-covering.

Torture

I’m still making my way through the CIA Inspector General’s report on torture which was released (with some redactions) yesterday. I’ll have some thoughts, I think, once I’ve given it a closer look. But for now, I think, publius sums things up nicely:

The highlights include:  (1) mock executions; (2) threatened rape of family members; (3) threatened murder of children; (4) kicking and beating a detainee with a metal flashlight to death; (5) threatening naked hooded detainees with power drills; (6) blowing cigar smoke in detainees’ faces until they got sick; (7) waterboarding with massive volumes of water far beyond what OLC authorized (to make it “poignant”); (8) stress positions that nearly caused shoulder dislocations; (9) scraping detainees with stiff brushes; (10) choking a detainee with one’s bare hands until they nearly pass out; (11) subjecting detainees to extremely cold temperatures and water dousing; (12) “hard takedowns” (sometimes in diapers); and (13) beating detainees with butts of rifles (followed by kicking them).

There will be folks who will say that all of this is justified: We’re at war! But it’s still torture. Not “enhanced techniques,” but torture. Plain and simple — let me say it again — torture. Almost certainly in the legal sense, but also (because the law can be an ass) quite certainly in the moral sense.

Go ahead and defend it. But if you try to tell me it’s not torture — that it isn’t what it plainly is — I must conclude you’re either delusional or lying.

You don’t get prosecuted for torture. You get prosecuted for doing it wrong.

This isn’t good:

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on “whether people went beyond the techniques that were authorized” in Bush administration memos that liberally interpreted anti-torture laws.

Just to sum up: You don’t get prosecuted for waterboarding, or authorizing waterboarding, even though reasonable people have long agreed that waterboarding is illegal torture. But if, say, you didn’t waterboard the right way — well, then the Obama Administration will consider prosecuting you.

I agree with Andrew Sullivan:

But if the Obama administration does not investigate those really responsible for war crimes, and scapegoats a few sadists down the line instead, then they risk retroactively justifying the crimes they ran against.

The Wall Street Journal apparently thinks NOT torturing is illegal

Here’s the opening of their editorial:

Here’s a political thought experiment: Imagine that terrorists stage an attack on U.S. soil in the next four years. In the recriminations afterward, Administration officials are sued by families of the victims for having advised in legal memos that Guantanamo be closed and that interrogations of al Qaeda detainees be limited.

Should those officials be personally liable for the advice they gave President Obama?

Cute.

For the “thought experiment” to really work, though, NOT torturing terror suspects would have to be illegal under domestic and international law, as well as treaties the United States had signed long before the attack. In order to honor all those laws, the United States would be compelled to torture possible terrorists.

Oh. Wait. That’s kind of ridiculous, isn’t it?

Reading the rest of the editorial, and it’s clear the Wall Street Journal doesn’t get it. The editorial board apparently thinks that torture opponents are motivated by politics instead of principle and, oh yeah, the clear intent of the law against torture.

Obama: Cheneyism with a smiling face

For months now, the folks at Fox News have been warning us that President Obama is a baby tyrant, a dictator-in-the-making who secretly hates American freedoms. Like most liberals, I’ve laughed this off with a political version of the “Costanza Rule” — whatever Glenn Beck says, you’ll succeed by thinking the exact opposite.

But what if the conservatives are just a tiny bit right?

Crazy? Maybe. But Obama’s moves on national security — highlighted by last month’s dueling speeches with Dick Cheney — are making me uncomfortable. And if conservatives are right, it’s for the wrong reasons: If Obama is moving the country towards tyranny, it’s because he’s too similar to his Republican predecessors.

The same-day speeches came after Cheney launched a media tour warning that Obama was endangering the lives of Americans by ending torture and ordering the closure of the terrorist prison camp at Guantanamo Bay, Cuba. Obama decided to offer a rebuttal.

The stylistic gap couldn’t have been more palpable: Cheney was contemptuous of his opponents, while the president came across a bit professorial. For liberals, this was comforting: If the former vice president couldn’t defend his position without sounding like a big jerk, that meant his position was probably wrong. Right?

“BLAHBLAHBLAH!” snarled Cheney.

“Blah. Blahblahblah,” said Obama, thoughtfully.

There were big differences. Cheney loves waterboarding, Obama not so much. The problem arose, however, when Obama announced his plans for handling terror suspects now in American custody at Gitmo.

For seven years, Cheney and the Bush Administration fought tooth and nail against giving detainees a fair chance to prove they weren’t terrorists, back-tracking only when forced to by the Supreme Court. Obama’s speech made it clear that detainees will finally get their day in court — so long as their convictions are assured.

Here’s how Obama’s process will work: If the government thinks it can convict a terror suspect in federal court, it will prosecute him there. If the government thinks its evidence might not quite stand up in federal court, it will try him before a “military commission,” where the rules are stacked in the prosecution’s favor. And if the government doesn’t think it can win a conviction even under those loose standards — well, it will just keep those suspects locked behind bars anyway. Just to be safe.

It’s Cheneyism with a smiling face. But it is still Cheneyism.

“Let me repeat,” Obama said in his speech. “I am not going to release individuals who endanger the American people.”

Which sounds great, but is kind of awful. If President Obama is really going to grant due process rights to terror suspects, he has to run the risk that prosecutors will sometimes lose — and that terror suspects will go free. That’s the only way the legal process has any meaning.

If a detainee can get into court only because the government is guaranteed victory, the result is what used to be called a “show trial.” Show trials don’t happen in free countries under the rule of law. They’re not supposed to happen in the United States. They did, however, happen all the time in the old Soviet Union. Draw your own conclusions.

“There is no such thing as ‘due process light,’” ACLU director Anthony Romero said in a statement when news of Obama’s military commissions leaked. “Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless.”

This would be no problem, perhaps, if President Obama could guarantee that every person suspected of terrorism truly is a terrorist. He can’t. It is well-documented that hundreds of original detainees were guilty only of being in the wrong place — Afghanistan, mostly — at the wrong time. Conservatives like to point to Defense Department statistics suggesting that one of every seven detainees who have been released from Gitmo ended up returning to the “battlefield” as terrorists. But that number also suggests that six of every seven detainees went home to resume peaceful lives. That’s reason enough not to let Obama stack the deck against terror suspects.

This is not easy stuff — the threat of Al Qaeda and the challenges of terrorism will not go away just because we have a cool new president. We all want to be safe. But Obama himself has told us, repeatedly, that we don’t have to choose between our values and our security in the fight against terrorism. I believed him. That’s why I voted for him, and that’s why I celebrated when he opened his presidency by ending torture and promising to close the prison camp at Gitmo.

“Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man,” Obama said in his inaugural speech. “Those ideals still light the world, and we will not give them up for expedience’s sake.”

Lovely words. I’m not sure I believe them anymore.