We have heard a great deal from our president about how he will close Guantanamo and end the abuses of civil rights that have blackened the name of the US there. After those civil rights violations were declared unconstitutional by the US Supreme Court in Hamdan v. Rumsfeld (in a decision that included a stinging rebuke to the Bush administration for considering them), Senator Obama spoke on the Senate floor about the costs of those abuses and the damage they do to our national identity. In a speech in support of Arlen Specter’s amendment restoring respect of habeas corpus rights to the Military Commissions Act of 2006, Obama said:
Without hearing a sudden knock on the door. I bring this up because what is at stake in this bill, and in the amendment that is currently being debated, is the right, in some sense, for people who hear that knock on the door and are placed in detention because the Government suspects them of terrorist activity to effectively challenge their detention by our Government…
The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.
I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.
This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:
'Sometimes, we just didn't get the right folks.'
We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria--through a rendition agreement--tortured, only to find out later it was all a case of mistaken identity and poor information. . . .
This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .
But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance--even one chance--to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit...
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
In Sunday's New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe 'actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay.'
This is not just unhelpful in our fight against terror, it is unnecessary. We don't need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.
Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:
'To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ..... The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.'
The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future--our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the 'great writ' -- a writ that has been in place in the Anglo-American legal system for over 700 years.
Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life."
That stirring speech failed to convince Obama’s colleagues in the Senate of the importance of the amendment, and the act passed without it, but on June 12 of last year the US Supreme Court ruled in Boumediene v. Bush that that part of the Act was unconstitutional – prisoners shipped to Guantanamo Bay retained their habeas corpus and other due process rights.
That ruling put a second stake through the heart of the Bush administration's attempt to rewrite both the US Constitution and the English common law encoded in the Magna Carta, but the Bush administration responded to it in typically intransigent and childish fashion - it began flying the prisoners it had once flown to Guantanamo to Bagram Airbase in Afghanistan, and it claimed that since those prisoners weren't being flown to Guantanamo, Boumediene didn't apply to them.
Many of us who supported Barack Obama for president did so because we expected that he would take steps to end this destructive and immoral distortion of our Constitution, and we were encouraged by his immediate declaration that he would close Guantanamo and return us to adhering to rights which we treasure here, and for which we have been admired and respected around the world for generations.
That’s the guy I voted for. The guy who made the speech quoted above, the guy who was sufficiently versed in the Constitution to recognize that this is one of the central protections that makes the US what it is, and the guy who was smart enough to realize that the respect for law exemplified by that protection is also one of our most potent weapons against terrorists.
As Glenn Greenwald points out, we got a shock in February when Obama’s justice department filed a brief supporting the hair-splitting engaged in by the Bush administration, agreeing that there was some sort of difference between disappearing people to Afghanistan and disappearing them to Cuba. While that brief caused some concern, the administration largely got a pass – they were just getting settled, they hadn’t had a chance to change the course of Bush advocacy yet, etc., etc.
That excuse is getting too old to be believable any more, and we have seen no change in the administration’s position. In fact, it’s gotten worse. Last month, a federal court ruled that the distinction drawn, now by both the Bush and Obama administrations, between kidnapping people to Bagram and kidnapping them to Camp X-Ray is ridiculous, and that Boumediene applies equally to either prison.
On Friday, the Obama DOJ announced its intention to appeal that ruling, so it could continue to hold people incommunicado and without any recourse to a trial of any kind. This is a disgrace, and absent some sort of compelling argument in favor of this policy (and I’m at a loss to imagine what that argument might be), any fair-minded person who supported President Obama when he was a candidate (including me) now has to recognize that on this issue, he has betrayed us.
This is not what I voted for. This is not acceptable. This is a repudiation of the argument this president made while running for office, and a repudiation of those supporters who agreed with that argument and relied on this president to keep his word, and it’s a disgrace.
Obama has been filling my in-box since he got elected with appeals for support, both material and political, for his agenda. I have replied to those appeals in the past with contributions, but the next one will get a nasty letter from me explaining that I can no longer send such support until and unless this policy (and the equally disgraceful support for illegal wiretapping) is ended or thoroughly explained. It’s time for this president to hear from his supporters in a clear an unified voice that we won’t support him while he acts in direct opposition to not only our beliefs, but those principles he so compellingly made the case for in his own campaign.
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