Because as eloquent and helpful as Obama's speech was - and as welcome a contrast to Dark Lord Cheney's sneering pro-torture authoritarian rant - the arguments he articulated so well against the Cheney-Bush extralegal policies also apply to his misbegotten decision to attempt to continue the kangaroo court system.
We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.
How long are we going to keep pretending that we're spending half the military budget of the entire world to protect ourselves against a fanatical cult hiding in the badlands of eastern Pakistan somewhere?
Rule of law and accountability require prosecuting all the perpetrators of torture. Due process means putting these allegedly fearsome terrorists in Guantanamo into the regular civilian and military court systems. Otherwise, those nice words are just hot air.
I know some have argued that brutal methods like waterboarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence. I bear the responsibility for keeping this country safe. And I categorically reject the assertion that these are the most effective means of interrogation. (Applause.) What's more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counterterrorism efforts -- they undermined them, and that is why I ended them once and for all.
That's the kind of statement against torture that every Democrat in Congress needed to be making since the Abu Ghuraib photos were first published in 2004. And he's dead right in saying that torture "undermine[s] the rule of law", although you can forget about our infotainers in the press corps from comprehending what that means.
But if his administration doesn't prosecute the torture perpetrators, the essential damage to the rule of law done by the Cheney-Bush administration will remain. As I said in an earlier post, ending torture doesn't mean that the Obama administration decides not to do it for pragmatic or PR reasons. It means deterring the Jeb Bush administration from doing it. And that requires prosecuting the perpetrators. The Dick Cheneys of the world have nothing but contempt for pretty rhetoric, as the Dark Lord himself showed in his Thursday speech. Deterring them will take enforcement of the torture laws. For the next set of Dick Cheneys, all the rest is just talk worthy only of their sneers.
This is most discouraging passage of all in Obama's speech:
Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here -- this is the toughest single issue that we will face. We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
This comes after an eloquent rebuke of fear-mongering over the issue of Guantánamo prisoners. But what else is this passage but the same kind of fear-mongering? If they can't be tried in the courts, how does anyone know they are a threat?
Look at the categories he cites: "received extensive explosives training at al Qaeda training camps": if this is true, why can't they be charged with membership in a terrorist organization?
"or commanded Taliban troops in battle": in itself, this means nothing. The United States attacked Afghanistan, where the Taliban was the de facto government, though not legally recognized as such by the UN nor by most countries of the world. But they fought the invaders. I supported the American war in Afghanistan in its early years. But the idea that someone who fought on the other side is forever a threat is nuts.
This relates to an important failing in the Obama administration's legal clean-up of the mess created by Cheney and Bush. International law requires that prisoners captured on the battlefield have their status ruled upon by an independent tribunal to determine if they qualify as prisoners of war. I've never understood why the Obama administration didn't immediately incorporate that into its plans. We are still fighting in Afghanistan against enemies we call the "Taliban". So if these prisoners can be considered prisoners of war in an ongoing armed conflict, then classify them that way and follow the laws on prisoners of war.
"or expressed their allegiance to Osama bin Laden": Same question as above, if this is true, why can't they be charged with membership in a terrorist organization?
"or otherwise made it clear that they want to kill Americans": does this mean anything at all? People picked up for no good reason, held in a foreign prison for years away from their homes and families, tortured, denied any kind of trial, hold angry feelings against Americans? Does this mean if they finally get to return home they're going to take the first plane to the US to kill somebody? This is straight-up fear-mongering. If they or prisoners of war, classify them and treat them as such. If they have done something criminal, then try them in the regular courts. Threatening to murder someone is a crime, isn't it? Saying, "Damn, I'd like to kill some Americans" isn't.
I truly don't see how holding any of those alleged threats indefinitely outside the regular legal processes is justifiable or sensible. Obama is trying to con us on this one. Again, if they can't be tried in the courts, how does anyone know they are a threat? Obama didn't tell us.
"If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight." I'd like to take a generous interpretation of this and hope that Obama is talking about prisoners of war here. But protracted preventive detention is just imprisoning people who haven't committed a crime. Having a kangaroo court review it, or having a Committee of Congressional pants-wetters who quaver in fear at the mention of "Scary Terrorist!" won't change it or make it right.
If his speech is an indication, Obama is trying to minimize the number of people he keeps in the Cheney-Bush legal limbo. But if he really wants to clean this up in a way that comports with the rule of law, his argument for preventive detention undermines his case. If preventive detention for some is okay, the Republican bullies and Democratic pants-wetters in Congress will always be upping the ante on how many of the Scary Terrorists against whom we have no evidence to hold them that would stand up in a legitimate court should fall under preventive detention.
And the Jeb Bush administration will have another precedent to rely upon. As Glenn Greenwald puts it:
The fact that a Democratic President who ran on a platform of restoring Constitutional principles -- along with huge hordes of his supporters -- will now advocate creating and institutionalizing a system of indefinite detentions with no trial and no charges of lawbreaking (not only for current detainees but also future ones) is a pretty remarkable event.
... Obama and Senate Democrats are now advocating their own system of indefinite detentions without trial for what will be, by all accounts, the Permanent War on Terror.
Or, as Juan Cole puts it (Informed Comment 05/22/09):
Obama says he doesn't want to re-litigate the last 8 years. That is frankly disingenuous. The last 8 years was never litigated. And crimes were committed. If they are not addressed, they will become norms, not crimes.
Actually torture will remain a crime. The question is whether the US will become such a rogue state that we will not enforce those laws against Republican administrations that violate them.