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Published on Thursday, May 21, 2009 by Salon.com

Obama's Civil Liberties Speech

by Glenn Greenwald

Obama's speech this morning, like most Obama speeches, made pretty points in rhetorically effective ways about the Constitution, our values, transparency, oversight, the state secrets privilege, and the rule of law.  But his actions, in many critical cases, have repeatedly run afoul of those words.  And while his well-crafted speech can have a positive impact on our debate and contained some welcome and rare arguments from a high-level political leader -- changes in the terms of the debate are prerequisites to changes in policy and the value of rhetoric shouldn't be understated -- they're still just words until his actions become consistent with them.

Worse, Obama repeatedly invoked the paradigm of The War on Terror to justify some extreme policies -- see my post of earlier today on this practice -- beginning with his rather startling declaration that he will work 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."  In other words, even as he paid repeated homage to "our values" and "our timeless ideals," he demanded the power (albeit with unspecified judicial and Congressional oversight) to keep people in prison with no charges or proof of any crime having been committed, all while emphasizing that this "war" will continue for at least ten years.  Compare the power of indefinite, "preventive" detention he's seeking to this:

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."  Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J.) (conc. op.).

Similarly, he simultaneously paid homage to "rule of law" while demanding that there be no investigations or accountability for those who repeatedly broke the law. 

The speech was fairly representative of what Obama typically does:  effectively defend some important ideals in a uniquely persuasive way and advocating some policies that promote those ideals (closing Guantanamo, banning torture tactics, limiting the state secrets privilege) while committing to many which plainly violate them (indefinite preventive detention schemes, military commissions, denial of habeas rights to Bagram abductees, concealing torture evidence, blocking judicial review on secrecy grounds).  Like all political officials, Obama should be judged based on his actions and decisions, not his words and alleged intentions and motives.  Those actions in the civil liberties realm, with some exceptions, have been profoundly at odds with his claimed principles, and this speech hasn't changed that.  Only actions will.

 

UPDATE:  Immediately reacting to speeches of this type, as I've done here, is always a perilous undertaking, since it generally helps to be able to reflect on what one has heard.  It ought to be apparent that my reaction to Obama's speech was fairly mixed.  There were some very well-delivered and well-argued parts -- ones that were important.  And one sees the potency of the bipartisan political opposition -- and the vindictive conniving from some of  Washington's permanent power centers in the intelligence and military community -- triggered by even by the mildest of changes, such as the closing of Guantanamo and the release of the OLC memos.  Challenging that opposition, even rhetorically, entails political costs and deserves some credit.  But I'm always going to assess Obama based on what he does, not on what he says.

Ultimately, what I find most harmful about his embrace of things like preventive detention, concealment of torture evidence, opposition to investigations and the like is that these policies are now no longer just right-wing dogma but also the ideas that many defenders of his -- Democrats, liberals, progressives -- will defend as well.  Even if it's due to perceived political necessity, the more Obama embraces core Bush terrorism policies and assumptions -- we're fighting a "war on terror"; Presidents have the power to indefinitely and "preventatively" imprison people with no charges; we can create new due-process-abridging tribunals when it suits us; the "Battlefield" is everywhere; we should conceal evidence when it will make us look bad -- the more those premises are transformed from right-wing dogma into the prongs of bipartisan consensus, no longer just advocated by Bush followers but by many Obama defenders as well.  The fact that it's all wrapped up in eloquent rhetoric about the rule of law, our Constitution and our "timeless values" -- and the fact that his understanding of those values is more evident than his predecessor's -- only heightens the concern.

So now, we're going to have huge numbers of people who spent the last eight years vehemently opposing such ideas running around arguing that we're waging a War against Terrorism, a "War President" must have the power to indefinitely lock people away who allegedly pose a "threat to Americans" but haven't violated any laws, our normal court system can't be trusted to decide who is guilty, Terrorists don't deserve the same rights as Americans, the primary obligation of the President is to "keep us safe," and -- most of all -- anyone who objects to or disagrees with any of that is a leftist purist ideologue who doesn't really care about national security.  In other words, arguments and rhetoric that were once confined to Fox News/Bush-following precincts will now become mainstream Democratic argumentation in service of defending what Obama is doing.  That's the most harmful part of this -- it trains the other half of the citizenry to now become fervent admirers and defenders of some rather extreme presidential "war powers."

 

UPDATE II:  There's very little worth saying about the speech Dick Cheney delivered after Obama's.  It's just the same recycled, extremist neoconservative pablum that drove the U.S. into the deep ditch in which it currently finds itself.  The central Cheneyite claim -- they were right because they prevented another Terrorist attack on the Homeland -- is so patently ludicrous, since (a) they presided over 9/11; (b) the post-9/11 antrax attacks happened "on their watch"; (c) Clinton "kept the country safe" for almost 8 years after the first World Trade Center attack (and, therefore, by Cheney's reasoning, Clinton's terrorism approach must have been optimal); and (d) it assumes without demonstrating that we're unable to defend ourselves unless we torture people, spy without warrants, and generally act like lawless, barbaric cretins.

I spent most of the first couple of years after I began writing, in late 2005, focused principally on the corruption and destruction wreaked by America's Right (with a secondary focus on their Democratic enablers).  I did that because, back then, that was who mattered.  I tend to ignore the Cheneyite Right now because they matter far less and their glaring flaws are manifest to most people, not because I think they're any less worthy of scorn and contempt.  

 

UPDATE III:  Upon further reflection, and after reading D-Day's reaction to Obama's speech, one point I made in the immediate aftermath of the speech isn't really accurate.  Obama did not, as I inaccurately wrote, "demand[] that there be no investigations or accountability for those who repeatedly broke the law."  Instead, he said that he personally is not interested in "re-litigating" those issues, and that he opposes an independent Truth Commissions, but also said:

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

That seems consistent with what he has said in the past -- that it is for the Attorney General to decide who should and should not be prosecuted -- though, as D-Day points out, those statements seem inconsistent with many of Obama's actions.  That, I think, is the key point.  As Holly McLachlan says in Comments:  "Obama is a tremendous speaker. The best I've seen in national politics during my adult lifetime, without contest."  Nobody can give as persuasive and moving a political speech as he can.  That's all the more reason to be vigilant about judging him by his actions.

© 2009 Salon.com

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

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