On torture-16: Obama’s appalling stances on civil liberties

(For previous posts on torture, see here.)

The corrupting effect of condoning torture can be seen in the way that Obama is now advancing the appalling policy of “preventive detention”, allowing the government to hold prisoners without trial indefinitely. This means that the fundamental constitutional protection of habeas corpus has been abandoned by Obama as well, making a mockery of his claim to be teacher and scholar of constitutional law,.

What the Obama administration is doing is trying to create a range of ‘trials’, all designed to keep some people incarcerated forever, even if they cannot be proven guilty. Those whom they think they can prove to be guilty by normal rules of evidence they will try in the regular legal system. Those for whom the evidence may not be sufficient or not normally allowable (because, say, the information was obtained by torture or is hearsay or otherwise inadequate) will be tried in ‘tribunals’ where rules designed to protect the rights of defendants are relaxed and convictions easier to obtain. Those people for whom there is no real evidence or whose torture they do not want revealed to the world will be held indefinitely without trial.

That this is a gross perversion of what we think of as justice should be apparent to anyone. Gone is the quaint presumption that people are innocent until they are proven guilty. Replacing it is a medieval system where the ruler decides peremptorily whether you are guilty or not. Basically, what Obama is creating is a system where his administration first decides whether people are guilty, and then constructs a “legal” system that allows them to create a forum which will ensure that the detainees they have already decided is guilty will be found guilty. There is no other description for this than a ‘show trial’. It is nothing less than the worst kind of legal sham practiced by authoritarian governments. If such trials were conducted by (say) Iran or North Korea or Russia, they would be denounced by the American media as a mockery of justice. But when practiced by the US government, the media actually goes along with it, treating the whole charade as a sensible practice.

Will Bunch points to the really disturbing part of Obama’s recent speech where he outlined this policy of creating parallel trial systems and preventive detention. After first boasting about his familiarity with the principles of the US constitution acquired as both a student and teacher of it, Obama then proceeds to rip that venerable document to shreds:

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here — this is the toughest single issue that we will face. We’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law.

But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. (my italics)

When Obama uses the royal “we” in the past paragraph, he is reserving to himself what should be the prerogative of the courts, the right to determine guilt or innocence. So it is clear: the Obama administration will first decide who is guilty and dangerous and then find a way to keep them in prison forever, a policy he describes using the Orwellian phrase “preventive detention”. As Michael Ratner of the Center for Constitutional Rights says:

[Obama] said some people are just too dangerous to let go and that we have to keep them…Though we’d do it differently then Bush. We will set up rules. Well no matter how you repackage Guantanamo, with all kinds of rules on top of it — that is what he is doing, he is re-wrapping a preventive detention scheme and giving it some more due process. In the end, it still comes down to holding people — much like Minority Report or pre-crime stuff — for being dangerous, and that is not something that I think is constitutional or this country should be engaged in.

Obama’s actions in creating this framework of show trials is all of a piece with his backtracking on his promises to quickly close Guantanamo, to quickly end the war in Iraq, and his reluctance to prosecute the war crimes of the Bush administration. While he drags his feet on his promise to close Guantanamo, yet another detainee, a 31-year old man, has committed suicide after being detained without charge or trial since February 2002.

William Blum sums up the problem with Obama:

The problem, I’m increasingly afraid, is that the man doesn’t really believe strongly in anything, certainly not in controversial areas. He learned a long time ago how to take positions that avoid controversy, how to express opinions without clearly and firmly taking sides, how to talk eloquently without actually saying anything, how to leave his listeners’ heads filled with stirring clichés, platitudes, and slogans. And it worked. Oh how it worked! What could happen now, as President of the United States, to induce him to change his style?

I could really feel sorry for Barack Obama — for his administration is plagued and handicapped by a major recession not of his making — if he had a vision that was thus being thwarted. But he has no vision — not any kind of systemic remaking of the economy, producing a more equitable and more honest society; nor a world at peace, beginning with ending America’s perennial wars; no vision of the fantastic things that could be done with the trillions of dollars that would be saved by putting an end to war without end; nor a vision of a world totally rid of torture; nor an America with national health insurance; nor an environment free of capitalist subversion; nor a campaign to control world population … he just looks for what will offend the fewest people. He’s a “whatever works” kind of guy.

I think Blum’s assessment of Obama is largely correct, though I would welcome being proved wrong. Being able to make stirring speeches is a valuable skill. It can make people rise to their better selves and to forget petty concerns. But it can never be a substitute for principled actions. If not backed up by concrete actions, the words will rapidly ring hollow and become a target of ridicule.

POST SCRIPT: Torture excuse chart

In this series of posts, I have painstakingly addressed all the excuses offered by torture apologists. I discovered that someone has organized many of them into a handy chart.

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