Phillip
Carter is a lawyer, a former Army Captain, a veteran of the Iraq War
and a very harsh critic of the Bush administration's detention and
interrogation policies. He was a vigorous supporter of Barack Obama's
campaign, and in 2008, became the Obama campaign's National Veterans
Director. In April of this year, he was appointed the top Pentagon
official for detainee affairs, but yesterday, he suddenly
"quit without explanation just days after Obama confirmed in an
interview with Fox News in Beijing that his administration would miss
its Jan. 22 Guantanamo closure deadline."
Carter said
he was resigning due to "personal issues," and -- like Greg Craig
before him -- remained loyal to Obama by refraining, at least thus far,
from publicly criticizing any administration policies. I have no idea
what actually motivated Carter's abrupt resignation, but here's what
I do know: so many of the detention and other "War on Terror" policies
Obama has explicitly adopted were the very same ones which Carter (as
well as Obama) repeatedly railed against during the Bush years, in
Carter's case primarily in blogs he maintained both at The Washington Post and at Slate. Whatever
else is true, the policies Obama has adopted in the last six months in
the very areas of Carter's responsibilities were ones Carter vehemently
condemned when implemented by Bush.
Last week,
the Obama DOJ announced that it would deny trials to several Guantanamo
detainees and instead send them to military commissions. In May, 2008,
Carter condemned military commissions in general
as "fundamentally and fatally flawed" and argued that "the rule of law
will prevail only if they are perpetually blocked." He cited a trial
in a "civilian court" (his emphasis) of accused terrorists that had just been held by France
-- "using a combination of open and sealed (i.e., classified) evidence
to prove the defendants' guilt in a six-day trial" -- and argued
the U.S. should copy that model: exactly the "civilian court" model
the Obama administration has decisively rejected for many, perhaps
most, detainees.
More notably, in a separate post from April,
Carter harshly condemned the Bush administration's decision to use a
military commission to try Ahmed Khalfan Ghailani, accused of the 1998
bombing of the U.S. Embassy in Tanzania. Carter suggested that trying
detainees for "war crimes" for pre-2001 acts violates the
Constitution's ban on ex post facto punishments (since
the U.S. was not at war at that time), and independently, he objected
to "the deliberate decision to take this case away from federal
prosecutors," arguing that "our default choice for the prosecution of
suspected terrorists should be federal court" because "the substantive
and procedural due process granted by federal courts has strategic
value -- it confers legitimacy on the outcome." While the Obama
administration commendably sent Ghailani to New York to be tried in a
civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the U.S.S. Cole -- raising all of the serious objections Carter voiced to the Ghailani case.
Carter had also voiced serious concerns
over the Bush DOJ's use of the "state secrets" privilege as a means of
evading vital constitutional and other legal questions -- only to watch
the Obama DOJ do the same thing. He insisted upon a distinction
between conventional wars of the past and the "War on Terror" when
claiming presidential power -- pointing out that conventional wars have
limits and come to an end and the "War on Terror" doesn't -- only to
watch the Obama administration discard that distinction and instead adopt exactly the Bush/Cheney "war" theory as a means to detain people with no charges. During the campaign, he expressed excitement
over what appeared to be Obama's stated willingness to prosecute Bush
officials for war crimes, only to watch Obama, once elected, quickly
insist that we should Look Forward, not Backward. Relatedly, Carter
advocated real consequences for DOJ torture-approving lawyers
such as John Yoo (specifically, his firing from Berkeley), only to
watch the Obama administration take multiple steps to protects such
officials from any legal consequences. He applauded
the Bush Pentagon's cancellation of a key appointment of Gen. Jay Hood
to Pakistan on the ground that Hood had presided over Guantanamo and
was thus "tained by torture," only to watch Obama appoint the highly tainted Gen. McChyrstal as his commander in Afghanistan.
As I
said, I have no idea whether any of this played a role in Carter's
resignation, and it's certainly possible that loyalty to Obama would
prevent him from voicing these complaints. He's a thoughtful analyst
who is not easily pigeon-holed and I don't want to attribute ideas to
him he hasn't expressed [for instance, Carter supported the work I did on the Pentagon's military analyst program but also defended
Obama's vote for telecom immunity, though on the ground that the
Government should be held accountable for illegal spying (another
position the Obama administration has undermined)]. But what is
abundantly clear is that many of the Bush/Cheney policies which Carter
found most offensive are ones which the new administration has
explicitly adopted as its own. Equally clear is that, following Greg
Craig, this is now the second high-profile resignation of a relatively
devoted civil libertarian in a short period of time. Combine that with
the still-missing-and-unconfirmed Dawn Johnsen, and all of this leaves
those who are indifferent or hostile to civil liberties values --
people like John Brennan and Rahm Emanuel -- with even fewer
counter-weights than before.