Friday, December 16, 2011

Our U-Turn President

By William Fisher

I guess I shouldn’t have been surprised. President Obama has done enough 180-degree last minute change-ups to make his opponents chuckle up their sleeves and his supporters become impotently furious.

Furious because they will have to vote for Obama in November. Impotent because they feel they have no other choice. Waking up on Nov 5th and finding Newt Gingrich or Mitt Romney as Commander-in-Chief would create a national shortage of cardiologists.

For progressives, what may help cushion the blow a bit is the memory of all this all having happened before. The catalog of 180’s is long and painful. It started with the President’s pledge – on his first day in office – to close Guantanamo. For a variety of reasons – principally Congress’s unreasoned hysteria about trying accused terrorists in our regular court system and therefore setting the stage for exonerations – and then we’d have Arabs walking up and down our main streets, dating our daughters and running for the school board (while they built “dirty bombs” in their rented rooms).

Our recent memories are packed with Obama’s numerous other U-Turns. For example, he continues the CIA’s program of extraordinary renditions to countries with long records of prisoner torture.

After releasing two of the so-called “torture memos” prepared by lawyers in George W. Bush’s Justice Department, he dug his heels in about further releases and about prosecuting CIA officials and agents for torturing prisoners, saying he’d rather look forward than backward.

His lawyers continue to invoke “state secrets” privileges in terror-related court cases, effectively silencing those who looked to the courts to hear their stories of abuse by the Bush Administration.

His fence-sitting at the beginning of the Arab Spring, which caused him, for example, to describe fallen Egyptian dictator Hosni Mubarak as “a stalwart ally,” and virtually abandon the pro-freedom demonstrators in tiny Bahrain because of its strategic importance as the home of the US Fifth Fleet.

Then there are the multiple flip-flops in the non-national security category, topped most recently by his “compromise” with the Republicans to reach an agreement on raising the debt ceiling and trying to avoid a default on the country’s debt and a downgrade in US Securities. The agreement was reached, and the GOP was overjoyed. The default was avoided, but the downgrade came anyway.

Now comes the latest incarnation of the same modus vivendi adopted by Obama on many other issues – his shocking turnabout regarding the National Defense Authorization Act (NDAA). A tiny part of the gargantuan funding bill for the Pentagon, it has taken on huge importance because of what it does to our justice system.

It authorizes the Pentagon to arrest suspected terrorists – including American citizens and regardless of where they are arrested – and detain them indefinitely without charge or trial. For a nation that prides itself on being rooted in the rule of law, it establishes a two-tier system of justice, with our regular courts doing what courts mostly do, but no longer trying accused terrorists.

These will be tried at Guantanamo, and if they are acquitted, the Department of Justice has made clear that they will be held anyway. But there’s little danger of acquittal, since GITMO’s Military Commissions are structured to obtain convictions, not acquittals.

Courts, on the other hand, are designed to achieve justice. Without help from the military, our courts have tried and convicted several thousand accused terrorists. Our civil judges would seem to know the drill, but Congress evidently never got the memo.

But a flock of prestigious military and civilian authorities did. Opposition to the detention provisions of the legislation came from Secretary of Defense Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and Lisa Monaco, head of DOJ’s National Security Division. The Senate ignored them all.

So President Obama trotted out one of his standard excuses for flip-flopping. Noting that last minute “tweaks” in the legislation in Conference Committee now made it acceptable to the Administration, Obama backed off his veto threat and signaled that he will sign this odious bill.

His rationale is familiar: Had he not obtained the changes that made the bill signable into law, the measure would have failed in its final vote, triggering a government shutdown. To avoid that, and the disruption it would create, compromise with the Republicans and some conservative Democrats was essential.

So in the end, the Republicans will get all they wanted – a Draconian law that, inter alia, makes the entire US a battlefield, plus the campaign-ready perception of Obama as a weakling, not ready to meet the GOP on the political battlefield. That, of course, will strengthen the public’s perception of Democrats historically being soft on terror (despite the deaths of Osama bin Laden, et al.).

I have to believe that the chief advantage Obama wanted from this legislation was yet more authority flying out of Congress and landing in the Executive Branch of government. Many observers believe that this is a power-grab by the President that is even more outrageously unconstitutional than the claim of George W. Bush that the government could spy on American citizens at will, without probable cause, and without oversight by anyone.

At the end of the day, this legislation will make counter-terrorism more difficult for the US, and evoke suspicion from many democratic nations who are spooked by the arrested without due process and held indefinitely without charge or trial.

Nor will it do anything good for America’s reputation in the world. After an initial burst of goodwill following his election and his Cairo speech, US prestige has been on a dramatically downward trajectory, further fuelled by The Arab Spring.

Even more reason why I take my hat off to Laura Murphy of the ACLU for her tenacity and optimism. At this, the 11th hour, she is still imploring the President not to sign the bill. It’s probably too late.

But she says, “The president should more carefully consider the consequences of allowing this bill to become law. If President Obama signs this bill, it will damage both his legacy and America’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”

I wish her the luck of the Irish. But I am not so optimistic.

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