Obama and Habeas Corpus -- Then and Now

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Salon.com

Obama and Habeas Corpus -- Then and Now

It was once the case under the Bush administration that the U.S. would abduct people from around the world, accuse them of being Terrorists, ship them to Guantanamo, and then keep them there for as long as we wanted without offering them any real due process to contest the accusations against them.  That due-process-denying framework was legalized by the Military Commissions Act of 2006.  Many Democrats -- including Barack Obama -- claimed they were vehemently opposed to this denial of due process for detainees, and on June 12, 2008, the U.S. Supreme Court, in the case of Boumediene v. Bush, ruled that the denial of habeas corpus rights to Guantanamo detainees was unconstitutional and that all Guantanamo detainees have the right to a full hearing in which they can contest their accusations against them.

In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process.  So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn't apply to them.  The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game -- fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process.  Put another way, you just close Guantanamo, move it to Afghanistan, and -- presto -- all constitutional obligations disappear.

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team."  Remember:  these are not prisoners captured in Afghanistan on a battlefield.   Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned.   Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges.  That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Guantanamo as it does to Bagram.  Notably, the district judge who so ruled -- John Bates -- is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge.  In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind (click image to enlarge):

bagram.png. . . bagram2.png

As Judge Bates noted, the prisoners shipped to Bagram actually have even fewer rights than the Guantanamo detainees did prior to Boudemiene, because at least the latter were given a sham Pentagon review (the CSRT tribunal), whereas the U.S. Government -- under both Bush and Obama -- maintain that Bagram prisoners have no rights of any kind.

In the wake of Judge Bates' ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing?  This:

The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight. . . .

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

"Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration's unlawful policies founded on nothing more than the idea that might makes right," she said.

Last month, I interviewed the ACLU's Jonathan Hafetz, counsel to several of the Bagram detainees, who said:  

What happened was, these people were picked up in this global war on terror, were brought to Guantanamo in 2004, and once Guantanamo became subject to habeas corpus review, the administration basically, the Bush administration stopped bringing people there, and started bringing them to Bagram, and Bagram's population has shot up, and it's become in some sense the new Guantanamo. . . . And so what you have is you have a situation where the Bush administration, was free to, and the Obama administration will continue to be free to, create a prison outside the law.

The Obama DOJ is now squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions.  Leave aside for the moment the issue of whether you believe that the U.S. Government should have the right to abduct people anywhere in the world, ship them to faraway prisons and hold them there indefinitely without charges or any rights at all.  The Bush DOJ -- and now the Obama DOJ -- maintain the President does and should have that right, and that's an issue that has been extensively debated.  It was, after all, one of the centerpieces of the Bush regime of radicalism, lawlessness and extremism.

Consider, instead, what Barack Obama -- before he became Persident -- repeatedly claimed to believe about these issues.  The Supreme Court's Boudemiene ruling was issued at the height of the presidential campaign, and while John McCain condemned it as "one of the worst decisions in the history of this country," here is what Obama said about it in a statement he issued on the day of the ruling:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

My, what a ringing and inspiring defense of habeas corpus that was from candidate Barack Obama.  So moving and eloquent and passionate.  And that George W. Bush sure was an awful tyrant for trying to "create a legal black hole at Guantanamo" -- apparently, all Good People devoted to a restoration of the rule of law and the Constitution know that the place where the U.S. should "create a legal black hole" for abducted detainees is Bagram, not Guantanamo.  What a fundamental difference that is.

Even worse, here is what Obama said on the floor of the Senate in September, 2006 when he argued in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees.  I defy anyone to read this and reconcile what he said then to what he is doing now:

The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:

"Sometimes, we just didn't get the right folks."

We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria--through a rendition agreement--tortured, only to find out later it was all a case of mistaken identity and poor information. . . .

This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .

But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance--even one chance--to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

In Sunday's New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe "actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay."

This is not just unhelpful in our fight against terror, it is unnecessary. We don't need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.

Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:

"To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ..... The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury."

The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future--our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the "great writ" -- a writ that has been in place in the Anglo-American legal system for over 700 years.

Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life.

I yield the floor.

So that Barack Obama -- the one trying to convince Democrats to make him their nominee and then their President -- said that abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Amerians generally; and (f) a violent betrayal of core, centuries-old Western principles of justice.  But today's Barack Obama, safely ensconsed in the White House, fights tooth and nail to preserve his power to do exactly that.

I'm not searching for ways to criticize Obama.  I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law.  But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good.  If there was any unanimous progressive consensus over the last eight years, it was that the President does not have the power to kidnap people, ship them far away, and then imprison them indefinitely in a cage without due process.  Has that progressive consensus changed as of January 20, 2009?  I think we're going to find out.

* * * * *

On a related note, the Columbia Journalism Review has a very interesting article tracing the origins of the "Obama/state secrets" controversy of the last week, documenting how it became a scandal, and examining which media outlets have and -- more importantly have been ignoring it.

UPDATE:  One of the things I always found so striking about debates over Bush/Cheney executive power abuses was that Bush followers who admittedly had no substantive arguments to justify those actions would nonetheless still find reasons to defend their admired leader:  Bush knows more than we do and probably has secret reasons for doing it.  Bush is a good person and well-motivated and there's no reason to think he's doing bad or abusive things.  Rights for Terrorists pale in comparsion to other more important issues.  Republican critics of Bush are hysterics and paranoids who are only criticizing him because they want to get on TV and sell books.

As of January 20, 2009, one no longer finds those claims at National Review, Weekly Standard, right-wing blogs and the like, but instead, finds them commonly expressed in Obama-defending venues and some liberal blogs.  Scan the comment section to John Cole's post criticizing Obama's Bagram position to see how frequently this mindset is now expressed to justify whatever Obama does -- these are just a representative sample of actual quotes:  

  • it seems much more plausible to me that Greenwald simply doesn't have access to the same facts the current DOJ does;
  • None of us have seen the actual case files and can make informed judgments about whether revealing the relevant information in particular cases would actually pose a threat to national security. That applies equally to Greenwald, and he must know that; it makes his rant silly and intellectually dishonest;
  • But Obama picks his battles. You can be upset that he hasn't chosen to make this one of them (I am too), but I'm not sure that it's necessarily on the same plane as the economy, health care, energy independence, etc.;
  • look at Obama and tell us if you see a man who is interested in some kind of imperial all-powerful, unchecked presidency. what in his background, his demeanor or his other actions make you think he's that kind of guy ? what does your gut tell you about him? he's a power-hungry authoritarian who is seeking to grab as much power as he can ? bullshit.
  • I guess Glenzilla will end up on the cover of Newsweek and have an appearance on Morning Joe soon since he has now said effectively that President Obama is worse than Bush but he is just about to over play his normally spot on hand with his rhetoric;
  • Let's also keep in mind here that one of Greenwald's jobs is to get people to read his blog. It's not like he's doing this for Salon pro-bono.

It goes on and on like that (with a fair number of comments who disagree).  My response to all of it is here.  And Cole commenter Mary adds some important thoughts here.

Most amazing is that the specific comment which John cut and pasted into his post (without approving of it) actually claims that a reading of the Obama DOJ's brief (here - .pdf) somehow doesn't constitute support for Bush's position even though (a) the Obama DOJ filed a 2-sentence brief in February saying they support the Bush/Cheney position in full; (b) the principal point of the new Brief is to argue that the District Judge was wrong to reject the Bush/Cheney position that Bagram detainees have no rights of any kind; and (c) the Brief repeatedly asserts pure, defining Addington/Yoo propositions about the unchallengeable power of the President to make decisions about detainees. 

To recap:  Obama files a brief saying he agrees in full with the Bush/Cheney position.  He's arguing that the President has the power to abduct, transport and imprison people in Bagram indefinitely with no charges of any kind.  He's telling courts that they have no authority to "second-guess" his decisions when it comes to war powers.  But this is all totally different than what Bush did, and anyone who says otherwise is a reckless, ill-motivated hysteric who just wants to sell books and get on TV.

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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