Obama’s Big Gamble

By William Fisher

Do you remember how thrilled we were when we heard our new President say:

“My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

In addition to being thankful to finally have a president who seemed thoughtful, and who spoke English in whole and understandable sentences, his words meant Bush’s Era of Secret Government was over

Gone was the bumbling Bush rhetoric that made us the butt of the world’s jokes. Gone was the swagger of ‘bring it on.’ Gone was the “you’re either with us or you’re against us” Crusader’s mantra.

It was, again, morning in America!

And the president gave us more than just words. He gave us proof that he was really serious. He ordered Guantanamo shuttered within a year. He closed the CIA’s secret black sites. He ordered a case-by-case review of every outstanding Guantanano case to determine what to do with each of the prisoners there.

He said, “The United States doesn’t torture.” And, unlike his predecessor, he sounded credible.

Regarding the Freedom of Information Act, he shifted the presumption of compliance from those seeking information to the government that had – and had frequently over-classified – that information. He gave his first foreign interview to an Arab television network. And he vowed to stop using the term “enemy combatant” – and moved the last of two such designees from a Navy brig to the civilian justice system for trial.

And he did almost all of that before the end of his first week in office.

Those were heady days. His supporters were jubilant.

But, you guessed it, there’s a BUT coming.

The but is that the part of Obama’s base that believes fervently in human rights, civil liberties, and the rule of Constitutional law, now finds itself disappointed, confused, bewildered.

The reason is that our new president’s lawyers have been traipsing into court, not to begin reasserting the primacy of the Constitution, not to start reestablishing the rule of law, but to argue the very same legal positions used by George W. Bush in his push for the Imperial Presidency.

Obama’s Justice Department has argued that non-Afghan prisoners captured outside Afghanistan and imprisoned at Bagram Air Force Base – some for years without charges -- have no Constitutional rights (the Court ruled they did).

DOJ lawyers went to court to argue that a lawsuit brought by five victims of “extraordinary rendition” should be thrown out because presenting the evidence in open court would jeopardize national security. The same “state secrets” gambit habitually invoked by the Bushies.

Then, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency's warrantless wiretapping program. They said, "The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,"

That case, Jewel v. NSA, is not a lawsuit against AT&T. But the DOJ's court motion fully supports the company. "All of plaintiffs' claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security," the government argued. A decision in this case is pending.

Then Obama’s DOJ lawyers used the same “national security” gambit to try to win a dismissal of a case involving a Saudi charity, Al Haramain, accused of laundering money to terrorist causes. The charity’s principals – and their attorney – claimed they were victims of Bush’s warrantless wiretapping program. A decision is pending before the Ninth Circuit Court of Appeals.

Now, if these cases get appealed to higher courts, it could be years before any of this is resolved. So much for transparency.

Which leads me to the question: Why is this happening?

To find an answer, over the past few weeks I have been talking off-the-record with a number of politically savvy beltway insiders. I admit I don’t have Sy Hersh’s sources, but here’s what I’m being told:

It’s a Chinese menu of possibilities:

1. CIA Director Leon Panetta, new to intelligence work, has been sandbagged by the old-timers there, who contend that what our spooks did cannot be discussed in court because that would reveal “sources and methods.” This view has sparked a huge argument within the administration between the intelligence pros and people who actually believed Obama on transparency. Panetta has already said he’s not interested in prosecuting CIA foot soldiers, who thought they were acting under law. He has also said the CIA would continue its rendition program – with the bogus “diplomatic assurances” that members of the CIA’s frequent flier program would not be tortured or abused at their destinations (just like the bogus assurances Bush got).

2. Then there’s the notion that Obama is protecting foreign intelligence services, with which the U.S. has to work. We are keeping our secrets to spare them embarrassment.

3. Obama fears that the remaining three “torture memos” prepared by Bush’s Office of Legal Counsel will be far more incendiary than the three recently released because they will reportedly set out the specifics of horrific interrogation techniques, and that will totally blow the lid off.

4. Obama fears that disclosure of the CIA’s handiwork would be a huge distraction from his mainstream agenda. So he and his advisors have made a calculated political gamble: They will risk the wrath of the Democratic party’s civil liberties base because, realistically, where will these people go in November 2012? Sarah Palen? Right! (But that’s a big gamble; they might just stay at home.)

5. While the president has distanced himself from the idea of any kind of “Truth Commission, ” he is actually counting on pressure on and from Congress to “make him do it,” Which is reportedly what LBJ told Martin Luther King in 1964, when Johnson had spent much of his political capital and that kind of pressure was critical to passing the Voting Rights Act of 1965.

Perhaps none of this should surprise us. Obama has consistently been lukewarm to idea of a Congressional or any other investigation of Bush-era practices and policies. He has said repeatedly he’d rather be looking forward than backward (albeit he’s also said that “no one is above the law.”)

I am clueless about which of the above possibilities, if any, are valid. But what I do know is that Obama’s human rights record will be terminally tarnished if he keeps sweeping this illegal mess under the Oval Office carpet.

As American University law professor Jonathan Turley and many other Constitutional scholars keep pointing out, the president in fact has no choice. He took an oath to uphold the Constitution. That means if laws have been broken – and if we needed any further proof, the recently leaked Red Cross report should suffice -- he is obligated under the Constitution to investigate and hold the guilty accountable. We’re talking war crimes. It’s not a matter of choice.

We need to know what was done in our name – and, more importantly, who authorized it?

The logical place for all this to begin is the Justice Department. And this is what I think may ultimately happen. I remain hopeful that a special prosecutor will be appointed.

But we may have to wait quite a while for enough pressure to build to “make him do it.”