Saturday, April 11, 2009

Change you can believe in, eh?

I know that it's becoming repetitive, but I could have seen Obama's approach to habeas corpus a mile away. In short, the Obama years look to be just like the Bush II years, except with "hope". Once Bush II and his henchmen managed to successfully turn the theory of the "unitary executive" into reality, there was no way that his successors would be able to refuse access to that much power. Whatever the most immediate Bush II successor, The Pope of Hope, might have said on the campaign trail, sober analysts would have discounted the rhetoric and expected the reality to be considerably different once Obama was installed into office. The reality thanks to the War on Terra is that the US no longer operates under anything other than the mercy of a unitary dictator who rules by fiat. Other than a few superficial linguistic changes, the song remains the same: if you are deemed a "terrorist", the Obama regime claims, just as the preceding Bush II regime, the right to hold you indefinitely. Here is what Glenn Greenwald has to say:

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled -- John Bates -- is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind...


In the wake of Judge Bates' ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing? This:

The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight. . . .

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.

In late February, I interviewed the ACLU's Jonathan Hafetz, counsel to several of the Bagram detainees, who said:

What happened was, these people were picked up in this global war on terror, were brought to Guantanamo in 2004, and once Guantanamo became subject to habeas corpus review, the administration basically, the Bush administration stopped bringing people there, and started bringing them to Bagram, and Bagram's population has shot up, and it's become in some sense the new Guantanamo. . . . And so what you have is you have a situation where the Bush administration, was free to, and the Obama administration will continue to be free to, create a prison outside the law.

The Obama DOJ is now squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions. Leave aside for the moment the issue of whether you believe that the U.S. Government should have the right to abduct people anywhere in the world, ship them to faraway prisons and hold them there indefinitely without charges or any rights at all. The Bush DOJ -- and now the Obama DOJ -- maintain the President does and should have that right, and that's an issue that has been extensively debated. It was, after all, one of the centerpieces of the Bush regime of radicalism, lawlessness and extremism.

Greenwald also notes that there is something very strikingly similar about Bush II's groupies and Obama's groupies on this issue: one dare not criticize "Dear Leader". Sadly this results in some rather blatant hypocrisy as the Obamabots now trumpet or at least make excuses for one of the very abuses that they would have unrelentingly criticized Bush II for. Those critical are to be dismissed as extremists, naive, etc. It will be worth keeping in mind that there are a few of us out here who aren't particularly impressed by the sort of cult of personality that has come to dominate American politics, and for whom principles are supreme. Here's a real shocker: if it was bad when Bush II detained people indefinitely, it's equally bad when Obama does it. For those still caught up in all of Obama's flowery rhetoric, before getting your panties in a bunch read that last sentence and think very carefully before trying to defend what Obama is doing.

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