Tuesday, June 23, 2009

Drawing the Line on the Obama Administration's National Security Practices

As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.


1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.

2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.

3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.