Belaboring the Obvious

Tuesday, January 05, 2010

Well, probably, these differing standards...

... can't be reconciled.

Greenwald is, of course, quite right in saying that partisanship has infected assessments of what the Obama administration is doing with regard to rule of law and in its conformation to Bush policies in that regard.

I do wish that he'd amplified on root causes, though. The myriad legal distinctions being made today derive from what can only be termed as imperial hubris, beginning with the desire to create a category of detainee separate and apart from those delineated in domestic and international law: the "unlawful combatant," thus placing all detainees outside the scope of law as defined, allowing both administrations to do an end-run around existing law.

In any conflict, those taking up arms in defense against a foreign invader can rightly be considered under existing law as POWs after being captured, whether they be regular soldiers or citizen-soldiers, formal or informal militia. Individuals detained because they were suspected of having plotted or assisted in the attacks of 9/11/2001 would under existing law be considered criminal suspects and, properly, would be placed in the criminal justice system.

That would be the normal state of affairs under law. But, the Bush/Cheney administration's desire was to create a military conflict in Afghanistan, and to therefore militarize the entire process. Having done so, even then, existing law should still have applied. POWs should have been afforded all rights under the Geneva Conventions, and criminals should have been transferred to the criminal justice system for trial. Those were the options, neither of which suited the increasingly out-of-control Bush administration. Instead, the administration chose to create special military commissions in which to try those who had been classified, arbitrarily, as outside of the protections of either domestic law or international treaty.

The military commissions created could have been used for actual war crimes as defined by law, but, instead, were designed to accommodate the administration's synthetic rules, the very first of which was that the President, by fiat and without due process, could assign anyone--including U.S. citizens--to a legally fictitious status which denied them all rights under existing law.

That is roughly the system Mr. Obama has inherited, and which Greenwald rightly assesses has been perpetuated in the current administration. If there were some respect for the Constitution in the Obama administration, there would be absolutely no talk of "indefinite detention." There would be absolutely no use of military commissions to prosecute ordinary combatants captured during military operations for resisting occupation as if that were a war crime. There would be no use of "secret evidence" and there would be, even in those military commission proceedings, consideration for the Geneva Conventions, and for due process. As of now, the reigning standard for the military commissions is that resisting foreign invasion and occupation is informally, and improperly, defined as a war crime, and that's imperial hubris at its extreme. Nevertheless, the root of that determination is in the arbitrary classification, unlawful combatant, created to evade rule of law.

The Bush administration did not simply make a mistake in creating this awful system. It was an intentional, planned and coordinated effort to subvert law by a group within that administration which has no respect for law. That much is evident from the DOJ torture memos alone. The Obama administration, in perpetuating that system, however, will be the ones making a mistake.

Despite Obama's repeated assertions that his administration is dedicated to transparency, the on-the-ground reality is very, very different. Obama has continued the multi-tiered system of justice--and detention--created by the Bush/Cheney cabal. Obama has continued the Bush/Cheney practice of using the state secrets privilege to prevent a host of civil cases from proceeding--cases which would both embarrass the government and expose government wrongdoing (notably, classification law does not allow security classification for those purposes, and yet, the Obama administration has been using "national security" precisely toward those ends).

Most importantly, the Obama administration has given perishingly little thought to the ways in which the Bush/Cheney administration set into motion a series of events which would actually ensure continued terrorism well into the future and which have encouraged a steady diminution of and disregard for the Bill of Rights, and, apparently, even less thought as to how to undo those adverse trends.

In ads during the campaign, Obama said, "As your commander-in-chief, my job will be to keep you safe." In saying that, he bought into two of the most odious memes fostered by George W. Bush--first, that the President is the commander-in-chief of us all, which is patently untrue, and second, that his job is to keep us safe, which is disingenuous and derivative. Nowhere in Obama's oath of office does it say that his solemn task is to keep us safe. That oath, however, does require that its taker affirm "to the best of my ability, preserve, protect and defend the Constitution of the United States." Our protection will not be found in the increasing militarization of law and society, but, rather, is anchored in the spirited defense of our common rights as the Constitution provides.


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