As he was taking leave of Louis XIV, the French commander Marechal Villars is believed to have said: "Defend me from my friends; I can defend myself from my enemies." This is how I feel right now about President Barack Obama. As Obama tries to clean up the Bush administration mess surrounding the terror suspects housed in Guantanamo, he is flirting with cementing in law some of the worst excesses of the Bush/Cheney regime.
The thought of this makes me weep into my Yes We Can coffee mug.
The betrayal came in Obama's speech last month at the National Archives, generally a superb speech that reaffirmed his understanding that the Constitution and Bill of Rights contain our "most cherished values" and must never be set aside "for expedience sake."
Then he set about explaining why he plans to set them aside for expedience sake.
Obama divvied up the remaining Guantanamo detainees into various categories — some who he said will be transferred to other countries, some who will be tried in American courts (such as the just-transferred Ahmed Ghailani, who is facing multiple terrorism charges before a federal court in New York). So far, so good.
But then Obama started to depart from his candidate promises to undo the destruction wrought to the Constitution by the Bush administration. He said that some detainees would be tried by military commissions.
Obama wants to create a Bush-like ad hoc legal system with a few added due process goodies thrown in.
Sorry, not good enough. Obama must know that a few fairness enhancements are not going to legitimize commission trials. Obama's commissions might bar evidence obtained through torture or abuse, but they will still allow coerced testimony — something no federal court would countenance.
Then, the bigger body blow was Obama's support for "prolonged detention" for terror suspects who he says cannot be tried because the evidence against them has been tainted by the Bush administration's abusive interrogation practices.
Preventive detention, where a prisoner is held without charge indefinitely, is the hallmark of Guantanamo. It is what makes the prison camp such a symbol of American hypocrisy and moral failing. If all we do is move the prisoners to the United States but keep the same imprisonment-without-trial policy, it will do nothing to repair our reputation or our national soul.
Moreover, any new law allowing indefinite detention for prisoners would offer an irresistible temptation to future presidents, who might not be as constrained in its use as Obama. Sen. Russ Feingold of Wisconsin warned as much in a letter to the president. "There is a real risk," Feingold wrote, "of establishing policies and legal precedents that … set the stage for future Guantanamos."
And just as troubling, Feingold noted, is that while the Bush administration was largely discredited because of its lawless actions against prisoners, if the Obama administration adopts preventive detention policies as well, the practice will have been established "by successive administrations of both parties," giving it legitimacy.
As chairman of a Senate subcommittee on the Constitution, Feingold held a hearing Tuesday on the constitutionality of Obama's preventive detention idea. Most experts weren't sold on its lawfulness or efficacy.
In essence, Obama is embracing the dangerous idea that due process can be adjusted based on a legal fait accompli.
If the government has enough admissible evidence for a conviction, the case will go to a federal court. If prosecutors will need looser evidence standards, the military commission will be the choice. And when there is no evidence beyond what was extracted through body slams, waterboarding or some overseas rendition torture squad, well then that prisoner receives legal purgatory until he is no longer deemed a danger — which may be never.
How is this upholding our "most cherished values"? Obama's plan is not markedly different from the Bush administration which also released some terror suspects, tried others in federal court (Zacarias Moussaoui and Richard Reid among others), brought some before a military commission and held the rest in preventive detention.
Does Obama really want to be remembered for this Japanese-internment moment, where he scuttles his beloved Bill of Rights to establish indefinite detention for those presumed to be our enemy, but not proven to be? If so, then my faith in this president as a friend to civil liberties is deeply shaken.