It was one of the few subjects on which Obama claimed to hold a position that a constitutionalist or friend of liberty would consider a refreshing change after eight years of Bush. On detention policy, torture, habeas corpus, interrogations, and Guantanamo Bay in particular, the Democrat always sounded a tad better than the Republican establishment. He voted against the Military Commissions Act. He called for all interrogations to be restrained by the Army Field Manuel. What passes for the modern conservative movement feared he would set free the prisoners of the war on terror, that he would jeopardize national security by adhering too strictly to a civil libertarian idealism.
Ever since he won the primary, Obama began disappointing even some of his ardent supporters when it came to national security and the war on terrorism. He ended up voting for the horrendous warrantless surveillance program. He picked hyper interventionists to direct his foreign policy. And on Guantanamo and detentions, there were also signs of equivocation.
On ABC with George Stephanopoulos, this is what Obama has now said:
It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it's true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn't result in releasing people who are intent on blowing us up.
For the full significance of this, see legal analyst Glenn Greenwald, who explains that
What [Obama's] saying is quite clear. There are detainees who the U.S. may not be able to convict in a court of law. Why not? Because the evidence that we believe establishes their guilt was obtained by torture, and it is therefore likely inadmissible in our courts (torture-obtained evidence is inadmissible in all courts in the civilized world; one might say it's a defining attribute of being civilized). But Obama wants to detain them anyway -- even though we can't convict them of anything in our courts of law. So before he can close Guantanamo, he wants a new, special court to be created -- presumably by an act of Congress -- where evidence obtained by torture (confessions and the like) can be used to justify someone's detention and where, presumably, other safeguards are abolished. That's what he means when he refers to "creating a process."
This "process" -- an alternate system of terror courts in the United States -- would be a most unsettling precedent. It would potentially mean that after seeing the Supreme Court affirm habeas corpus even for aliens at Guantanamo, now we would see the most basic safeguards of due process undermined right here on U.S. soil. Surely, it would not necessarily mean freedom for more innocents caught in the wrong place and wrong time.
Furthermore, while Obama continues to criticize the administration on interrogation and waterboarding, he qualifies his vows to put an end to torture as follows:
OBAMA: My general view is that our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)
STEPHANOPOULOS: So no more special CIA program?
OBAMA: I'm not going to lay out a particular program. . . .
Why's that, Barack?
[B]ecause. . . I thought that Dick Cheney's advice was good, which is let's make sure we know everything that's being done.
Dick Cheney had said to Obama in a public statement:
Before you start to implement your campaign rhetoric you need to sit down and find out precisely what it is we did and how we did it. Because it is going to be vital to keeping the nation safe and secure in the years ahead and it would be a tragedy if they threw over those policies simply because they've campaigned against them.
This is the good advice? That's not all! Obama points out that
during the campaign, although John McCain and I had a lot of differences on a lot of issues, this is one where we didn't have a difference, which is that it is possible for us to keep the American people safe while still adhering to our core values and ideals and that's what I intend to carry forward in my administration.
Of course, McCain was anti-torture only in the most superficial sense. He voted for the Military Commissions Act. Last year, he supported Bush's veto of legislation that would have binded the CIA to the Army Field Manuel. His campaign at the time explained that although McCain opposed waterboarding, he essentially thought the CIA needed to be allowed to do it and engage in other "enhanced interrogation techniques."
So on Guantanamo and torture, Obama takes his advice from Cheney and sees a kindrid spirit in McCain, two Republicans who supported and loudly championed the worst and most unconstitutional elements of U.S. detention policy since 9/11. The best we can reasonably hope for, it seems, is that Obama's new court system will not violate the Bill of Rights and the rule of law any more than current policy. As this point, things will be better than that only if the man breaks his campaign promise and ends up more principled than he vows to be.
Change we can believe in, indeed.
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