Greg Craig and Obama's Worsening Civil Liberties Record

Over at Daily Kos, Barbara Morrill complains that The Washington Post's Richard Cohen "is Karl Rove dressed up in pseudo-sadness" because -- according to her -- Cohen today
"whines that the Attorney General announced that the United States
follows the rule of law" by giving trials to 5 Guantanamo detainees. I
don't disagree with Morrill's general assessment of Cohen, but his
point today is actually the exact opposite of what she describes.
Cohen wasn't accusing Obama of lacking moral clarity because he's
giving trials to a few of the 9/11 defendants; rather, Cohen argues
that the lack of moral clarity comes from denying trials to many, perhaps most, of the detainees, who will receive only military commissions or be subjected to indefinite detention with no trials:

The
Barack Obama of that Philadelphia speech would not have let his
attorney general, Eric Holder, announce the new policy for trying
Khalid Sheik Mohammed and four other Sept. 11 defendants in criminal
court, as if this were a mere departmental issue and not one of
momentous policy. And the Barack Obama of the speech would have
enunciated a principle of law and not an ad hoc system in
which some alleged terrorists are tried in civilian courts and some
before military tribunals. What is the principle in that: What works,
works? Try putting that one on the Liberty Bell.

I
point to this because it highlights an extreme logical fallacy coming
from some Obama supporters ever since Holder announced the Guantanamo
policy -- a fallacy that is the inevitable by-product of the
administration's incoherent positions. In order to defend Obama, it's
necessary simultaneously to embrace these self-negating premises:

(1) The Rule
of Law and our core political values require that terrorist suspects
like Khalid Shiekh Mohammed be given trials (as Morrill put it: "the
Attorney General announced that the United States follows the rule of
law");

(2) Obama is explicitly denying
trials to many -- probably most -- of the Guantanamo detainees (as well
as the "rendered" ones at Bagram), instead putting them before military
commissions or, worse, indefinite detention with no charges;

(3) Obama
should be praised as a courageous and principled leader because he's
following the Rule of Law, which -- see #1 -- requires trials for
terrorism suspects.

Isn't the core
inconsistency of these premises obvious? Even Richard Cohen can see
it. The administration's actual position -- we'll give trials to
a handful of people we know we can convict and will continue to
imprison them even if they're acquitted, while affirmatively denying
trials to the rest -- is about as far from a principled or even
cogent position as it gets. Worse, it's impossible to defend Holder's
decision to give a trial to Mohammed by appealing to "the rule of law"
given that many of the detainees are being denied trials.
If (as Obama defenders insist) the "rule of law" requires trials,
doesn't that mean, by definition, that Obama and Holder -- by using
military commissions and indefinite detention -- are trampling on "the
rule of law," not upholding it?

To understand what has
been happening with Obama's actions on the civil liberties front in
general -- and how he came to embrace two core Bush/Cheney policies in
particular (indefinite detention and military commissions) -- it's very
worthwhile to read this new Time article
by Massimo Calabresi and Michael Weisskopf on how and why White House
Counsel Greg Craig was pushed out of his position. In essence, Craig
was the voice inside the administration insisting that Obama adhere to
his civil liberties campaign pledges and dismantle the Bush/Cheney
apparatus that progressives (and Obama) long claimed to find so
objectionable. But once Obama decided a few months into his presidency
that he would not do so, Craig became disfavored and then, finally,
pushed out:

Interviews with two
dozen current and former officials show that Obama's public decision to
reverse himself and fight the release of the [torture] photographs
signaled a behind-the-scenes turning point in his young presidency.
Beginning in the first two weeks of May, Obama took harder lines on
government secrecy, on the fate of prisoners at Guantanamo Bay and on
the prosecution of terrorists worldwide. The President was moving
away from some promises he had made during the campaign and toward more
moderate positions, some favored by George W. Bush. At the
same time, he quietly shifted responsibility for the legal framework
for counterterrorism from Craig to political advisers overseen by
Emanuel, who was more inclined to strike a balance between left and
right.

Note how abandoning one's
campaign promises and adopting Bush/Cheney detention and secrecy
policies is now deemed "moderate" -- or, as the Time photo
caption calls it, "pragmatic." The White House began panicking as they
were attacked by Dick Cheney and the Right for being "soft on terror,"
and the results were depressingly predictable:

Obama
needed to regain control quickly, and he started by jettisoning liberal
positions he had been prepared to accept -- and had even okayed -- just
weeks earlier. First to go was the release of the pictures of detainee
abuse. Days later, Obama sided against Craig again, ending the
suspension of Bush's extrajudicial military commissions. The following
week, Obama pre-empted an ongoing debate among his national-security
team and embraced one of the most controversial of Bush's
positions: the holding of detainees without charges or trial, something
he had promised during the campaign to reject. . . . The
unseen struggle took place in the spring, but the results are emerging
now. On Nov. 13, Attorney General Eric Holder unveiled plans to try
Guantanamo Bay detainees in federal courts, as preferred by liberals,
but he also announced he would try other suspected terrorists using extrajudicial proceedings out of Bush's playbook. The Administration is preparing to unveil its blueprint for closing the prison, but Obama will do so using some of the same Bush-era legal tools he once deplored.

None
of this will be news to anyone following Obama's relentless and
continuous embrace all year long of many of the
"counter-terrorism" policies of the Bush administration -- ones which
both he and progressives once claimed to find so intolerable. But
particularly striking is this on-the-record justification offered by a White House spokesman:

The
White House says Obama hasn't changed, just adjusted. "He and the
Administration have adapted as we have learned more and the issues have
evolved, but there has not been an ideological shift," says spokesman
Ben LaBolt.

By embracing and defending
numerous Bush/Cheney policies he once deplored, "Obama hasn't changed,
just adjusted." He's learned secret things that he can't tell you
about but which -- you should accept -- do justify his
"adaptations." Whenever Bush followers would run out of arguments to
defend their leader's actions, that's the same rationale they'd resort
to: he knows secret things that you don't know and therefore we should trust him.
So Obama has "learned" things that caused him to abandon his vehement
condemnations of indefinite detention, state secrets, military
commissions and denial of habeas corpus as unjust and un-American
travesties and come to embrace them as important and necessary
policies? Wow: that must have been quite an education. Don't he and
his supporters owe George Bush and Dick Cheney a sincere apology for
criticizing them all those years for these policies when, as it turns
out, they were necessary and just all along? And see this insightful argument that makes a related point.

So
one of the very few pro-civil-liberties insiders with any power is now
gone, replaced by a supremely partisan Washington insider with little apparent interest in those values. One of Obama's most impressive and exciting appointments
-- Dawn Johnsen to head the OLC -- has still not been confirmed despite
a 60-seat Democratic Senate. Instead, the former CIA official who defended so many of the Bush-era terrorism policies,
John Brennan, remains as Obama's top counter-terrorism adviser. And
Rahm Emanuel -- he of the "build-power-by-increasing-Blue-Dogs"
mentality and a driving force behind last year's Congressional
enactment of telecom immunity and warrantless eavesdropping --
continues to consolidate power even in these supposedly non-political
areas. Given all of that -- and with the 2010 midterms approaching --
does anyone think these trends will improve rather than worsen?

Whether Obama has adopted every last radical Bush/Cheney terrorism policy -- he hasn't -- is not the point. And the question of whether "Obama is as bad as Bush" -- he isn't
-- is no more relevant than the excuse that Bush's torture program
shouldn't be criticized because at least it never reached the level of
Saddam's rape rooms and limb removals. As even Time now
recognizes, many of the policies once widely declared by Democrats to
be a grave threat to the Constitution are now explicitly adopted by the
Obama administration. And it's flatly inconsistent to invoke "the rule
of law" to defend Obama's decision to give trials to a few Guantanamo
detainees without pointing out that he's violating that very same
precept by denying trials to so many.

UPDATE: The Nation's Jeremy Scahill reveals that the U.S. military is using Blackwater -- Blackwater
-- as part of "a secret program in [Pakistan in] which they plan
targeted assassinations of suspected Taliban and Al Qaeda operatives." McClatchyreports that Obama has made a decision to send 34,000 more troops to Afghanistan which, if true, means, as Juan Cole says, that "Gen. Stanley McChrystal has won the struggle for policy decisively."

So,
to recap: we have indefinite detention, military commissions,
Blackwater assassination squads, escalation in Afghanistan, extreme
secrecy to shield executive lawbreaking from judicial review,
renditions, and denials of habeas corpus. These are not policies Obama
has failed yet to uproot; they are policies he has explicitly advocated
and affirmatively embraced as his own.

And if you haven't seen or read
Bill Moyers' amazing -- and obviously relevant -- examination this week
of how and why President Johnson escalated the war in Vietnam, I can't
recommend highly enough that you do so.

UPDATE II: Nick Baumann of Mother Jones examines other aspects of the Time
article that he calls "troubling," and makes some important points
about what all of this reflects about Obama and his civil liberties
commitments.