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

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

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.

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):

. . .

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.

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:

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.

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:

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.

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

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.

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."

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.

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.

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

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.

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.

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