Yesterday Obama spoke on the torture issue, Guantanamo, state secrets and national security. The speech was a mixed bag. Some very good stuff…some, not so good. Transcript here.
Why Obama rejects the torture regime of Bush/Cheney…
What's more, they (harsh interrogations, i.e. torture) undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists and increase the will of our enemies to fight us while decreasing the will of others to work with America.
They risk the lives of our troops by making it less likely that others will surrender to them in battle and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counterterrorism efforts; they undermined them. And that is why I ended them once and for all.
Why Guantanamo must be closed…
Meanwhile, instead of serving as a tool to counter terrorism, Guantanamo became a symbol that helped Al Qaida recruit terrorists to its cause. Indeed, the existence of Guantanamo, likely, created more terrorists around the world than it ever detained.
How the Guantanamo problem was created initially…
The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican presidents, not wild-eyed liberals. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility. The problem exists because of the decision to open Guantanamo in the first place.
Where Obama is making a mistake…
..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.
…..
We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review so that any prolonged detention is carefully evaluated and justified.
We already have clear, lawful standards for those who can't be prosecuted because of prisoner abuse or government malfeasance. If their cases cannot be proven, these prisoners should be deported. That is the price a nation of laws pays when it's highest leaders decide to construct an illegal torture regime.
Obama, like Bush before him, simply doesn't like the clear, lawful standards we already have in place to deal with these cases of government abuse and the unlawful treatment of prisoners. So, Obama creates a whole brand new category of law even though his duty is to execute laws, not make them.
Al Qaida 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. And 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
…..
…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 in that 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. And so going forward, my administration will work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.
"prolonged detention". Give that two word phrase some thought. Those are the words of tyrants. "develop an appropriate legal regime"…because Obama, like Bush before him, doesn't like the "legal regime" we already have.
No, Obama didn't create the mess. But that is no excuse for his suggestion for a totally new, backward looking method of "prolonged detention" for prisoners we can't try in court.
Obama isn't really setting a new direction here. He is merely making the unlawfulness of the Bush/Cheney regime his own.
Neo-cons will applaud Obama for agreeing with Bush/Cheney on indefinite detention….but it is our nation who will suffer the consequences, just as it is now suffering the consequences of the lawlessness of Bush/Cheney.
{ 18 comments… read them below or add one }
Rev, I've alway heard the argument that these detainees are not subject to the Geneva conventions because they're not a uniformed combatant, that they're just a foreign multinational terrorist group. What do you think about that?
It seems that if we were to suspend that belief, and make them PoW, then don't we have the right to detain them until the war is over?
I think if Al Qaeda were to surrender then we could talk of releasing these POW's.
I believe al-Qaeda is an international criminal outfit. Not "enemy combatants." International law enforcement efforts are how we should deal with these criminals. Because I believe that, Geneva does not apply….but normal rules for treating apprehended criminals do. Torture would be ruled out. But a trial, I think, is essential.
The Supremes ruled that all Guantanamo detainees have habeas rights. Doesn't matter where they were picked up.
Obama is arguing that Bagram can house detainees indefinitely, and without any rights, no matter where they are picked up. That is illegal if the detained are brought in from other countries.
But if those detained are declared POW's, then it is against all military rules to torture or mistreat them. Prisoners in Iraq and Afghanistan are being treated as POW's. I suppose they can be held until the "war" is over….the problem is…we're not at war with Afghanistan or Iraq. We're not.
It's a mess.
Ok, I promise I didn't read the ABJ Law bloggers post before I made my comment on your blog. If you haven't read it, please do. I understand where the grey area is coming from. Is this an actual war or isn't it. Are these POW's or aren't they.
I'd like to hear your take on the law blogger's post.
And hey, be careful about actually discussing the ideas surrounding all this. I'd hate to see you "get down in the weeds" about all this… then I'd have to call out your knee-jerk reactionism.
Another example of Obama retreating on a campaign promise. Is this the change you voted for? "Indefinite detention" sounds scary to me. Wonder what John McCain would have done.
Were you scared, Bubba, when George and Dick were indefinitely detaining people? If not, you shouldn't be scared now.
McCain would have done what Bush/Cheney did. Obama, to his credit, is moving in the right direction, even though I don't agree with all his decisions.
Professor Huhn says this….
"in my opinion it is perfectly clear that we are at war with al-Qaeda and its allies and that the law of war as set forth in statutes and treaties permits us to treat captives as prisoners of war and to detain them until we have defeated the elements to which they have sworn allegiance."
This is silly, in my opinion. War is something we wage against nations, states. Al-Qaeda is an international criminal entity that should be dealt with through law enforcement mechanisms, possibly, at times, in conjunction with miltitary assistance.
We're we at war with David Koresh, or Timothy McVigh? No. We took law enforcement actions against perpetrators of crimes. We're we at war with the Mob….or did we use standard law enforcement procedures to arrest John Gotti?
I disagree with the professor's position on this.
From what I can tell Professor Huhn is a worse Obama lemming than you, Reverend. Reading that blog I can see why our lawyer-politicians are of such poor quality these days.
"poor quality" ……because he is a stickler about the law in general and the Constitution, in particular? I've noticed that about the modern conservative movement. It leans towards an "optional" approach to law and order type issues.
There you go again, Reverand. Posting silly comments. Although Professor Huhn and I have our disagreements, his position in the passage you quoted above is correct.
Your definition of war "as something we wage against nations, states" is absurd. Consider history. Was the near extermination of the indigenous peoples of America not an exercise in warfare because the Indian tribes were not organized into nation-states? Were the Roman legions protecting the northern border of the Empire from barbarian incursions not fighting wars? The heroes of the French Resistance did not fight under the flag of France, but they were engaged in warfare.
Consider Al Qaeda. It is at war with us (and declared itself to be so) even if you would rather approach the present conflict with police departments and courts. (Are terrorists captured on the battlefield to be read their "Miranda" rights?) Al Qaeda and the Taliban and their allies want to destroy us and the ideals for which we stand. If you really believe that it is only a "criminal enterprise" that wants to control the numbers racket or the drug trade, then you are more confused than I had thought.
Our present conflict with the Islamo-fascists may not fit the template of a conventional war, but war it is. Indeed, Al Qaeda is merely employing the classic techniques of guerilla warfare on an international scale. We cannot prevail in this conflict, if we do not grasp this fundamental point.
Quidpro is 100% correct. In fact, Quidpro pretty much pre-empted everything I was going to say, so I'll just offer this link to Bin Laden's 1998 fatwa against the USA. Al Qaeda and several other terrorist groups signed it. They are clearly at war with us.
http://www.pbs.org/newshour/terrorism/international/fatwa_1998.html
Also, notice that Bin Laden's fatwa came way before the Iraq War, the Afghanistan War, the Gitmo prison, Abu Ghraib, EIT's, or any of the other reasons that are stated as primary causes of terrorism by Obama and company.
That hasn't been my observation, Reverend. What I've seen is constant rationalization for the partisan position of the day. Not much intellectual curiosity at all.
We have not declared war in Afghanistan or Iraq. You fellows can bleat like sheep all the live long day….won't change a thing. Our military is working under specific "Use of military force" resolutions. No war declarations.
Is the al-Qaida network dangerous? Yes. Must we go after the al-Qaida network? Yes, because they attacked our country.
The rest of the blather consists of attempts to defend the indefensible. There is no war on terror and there never has been. Impossible stuff can't be made rational or understandable by sloganizing a few scare tactic words.
Quid agrees with Huhn…until he doesn't. Cafeteria thinking.
But wait…there's more….
" If you really believe that it is only a "criminal enterprise" that wants to control the numbers racket or the drug trade, then you are more confused than I had thought."
Neo-cons are cowardly in their approach to Islamic extremists. That's why they must inflate the danger. Exaggerate it. Use stupid and meaningless labels like Islamofascist, etc. Al-Qaida has never been a threat to the sovereignty or independence of America. They aren't now. They are a small, stateless, band of anarchists without technological capability nor serious sophistication. They got lucky on 9-11 because our people were not doing their jobs.
The real confusion in our country is exhibited by those who mistake cave dwellers with the Third Reich. Scared and quivering scaremongers.
Rev says, "There is no war on terror and there never has been."
I wonder if our soldiers in Afghanistan and Iraq would agree. I'm going to guess – NO.
I think your powers of observation are severely challenged, but have it your way. From now on, we'll call it the Afghanistan Overseas Holiday Vacation and the Iraq Happy Hour.
Reverand, your posts have gone from silly to merely disappointing. Where is your wit and your reason? Do you really think that war does not exist without a declaration by the government?
You accuse me of "cafeteria thinking" because I agree with some, but not all, of the points expressed by Professor Huhn. And this is to be contrasted with your more nuanced thinking which substitutes sophmoric insults ("wingnuts", "cowardly" neo-cons, "cave dwellers", etc.) in place of logic and reasoned debate?
Ad hominem arguments are the arguments that one offers when he has nothing better to offer.
Yep…."in place of logic and reasoned debate"
Logic and reasoned debate…like this…
"Our present conflict with the Islamo-fascists may not fit the template of a conventional war, but war it is."
The wingnut word "Islamo-fascists" is both illogical and unreasonable. Use of the word, "Islamo-fascists", is a prime example of why neo-conservatives cannot be taken seriously.
And I don't use the phrase, "cave-dwellers"…..yet.
Thank you for proving my point, Reverand.