This is why I named my own blog for Andrew Jackson

Obama's decision to continue with military tribunal kangaroo courts for accused "enemy combatants" is a big mistake. And a huge disappointment. Glenn Greenwald has it right in Obama's kinder, gentler military commissions Salon 05/15/09 when he writes:

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don't trust our own justice system, that we're willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush's military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama. [my emphasis]

The Sixth Amendment right to a speedy trial in our Constitution isn't just some procedural nicety. It's based on the reality that justice delayed is justice denied. The military commission system so far has allowed the government to keep people who haven't been convicted of any crime in prison, many of them being tortured, for up to seven years now. This means justice delayed again: justice to the accused, justice to the victims of the 9/11 attacks and their survivors, justice for the American people.


A couple of articles in the Munich Süddeutsche Zeitung are treating the military commissions decision along with the withholding of the latest round of torture photos using Cheneyist claims and the continuation of the ridiculous "don't ask, don't tell" policy even against some of the few fluent Arabic translators we have, as a "Wende von der Wende", a turning point against the turning point. And that's a fair characterization. Apart from it being wrong and a disgrace to the United States to admit that our regular judicial system cannot function in terrorism cases as effectively as that in Spain and other countries where the rule of law is currently taken more seriously than in the United States, it also means Obama has walked into a political trap that he could have and should have avoided.

It's become a bizarre thing to me that the Democratic leaders seem unable to face the reality of what today's Republican Party is and has been for two decades or more: an authoritarian part that participates in democratic elections under a Constitutional system, while rejecting in practice democracy, the rule of law and the most basic Constitutional restraints. That's no exaggeration. Dick Cheney's Unitary Executive doctrine that Bush adopted and used to justify evading the laws against torture and others as well holds that the President is simply not bound by the Constitution in anything he declares on his own without review to be related to "national security". And the Republicans have built a huge media infrastructure, the Might Wurlitzer of radio, FOX News and various conservative magazines and newspapers and Web site, that have maximum incentive to take the most irreconcilable, hardline partisan positions they can. In a real sense, the Republicans in Congress are not in a position on the military commissions issue to say to Obama, "Okay. You bought into our military commissions system. So we're going to accept that, applaud you in public over it, and ease up on criticisms that you're putting the country in danger." Even if they were so inclined, which most of them are probably not.

There's surely some deal-making with the national security establishment going on here. So maybe Obama is getting something from them in return, such as less static about withdrawing from Iraq. But Obama and many of his team seem to think that such moves will appease the Republicans and impress the Beltway Village. The Republicans and the Pod Pundits will praise them for their statesmanship in continuing the horrible military commissions idea, of course. But the Republicans and most Villagers will take it as a sign of blood in the water and intensify their attacks on Obama on all fronts as a result. David Brooks in his Friday New York Times Republican Party bulletin column declares that the greatest domestic threats to America are Obama's health care plan and the fact that old people get Social Security and Medicare. The military commissions decision will embolden them to escalate the political fight against those programs even more.

And if some defendants wind up being acquitted and released, the Reps and the Village will attack Obama for letting dangerous terrorists run free and putting the whole country in danger. He had a far better alternative. He could have declared that the military commissions system was unworkable and undesirable and put the prisoners into the regular military and civilian court systems. Then, when some defendants got acquitted and released and the Reps launched those accusations, he could say, "We followed the law. We put the accused through the court systems we have and are better suited to deal with terrorism cases than the military-commissions/kangaroo courts that Dick Cheney and George Bush set up. The biggest problem the prosecutors had was that so much of the evidence was tainted by torture and other mistreatment of prisoners. And that they records were so poorly kept that it was difficult in some instances to make as strong a case as we could have had the regular justice system been used to start with. So if you're upset about acquittals, go complain to Dick Cheney and George Bush that screwed this up so badly."

Now he's forfeited that option. He now owns the Cheney-Bush kangaroo courts in a way that he could have avoided. And the Republicans will not hold back on their accusations because he caved in to their position on this thing.

Just to be clear, the American court system has shown itself to be capable of dealing with difficult terrorism cases. As Glenn Greenwald says:

[D]uring the Bush era, civilian courts had a far better record of convicting accused terrorists than military commissions did, including convictions of Jose Padilla, Ali al-Marri, Richard Reid, John Walker Lindh, and Zacharais Moussoui, at least three of whom (Padilla, al-Marri and Lindh) were severely mistreated; if we could convict them in real courts, why can't we convict the other accused terrorists who are actually guilty?

What does Andrew Jackson have to do with all this? Because the democratic movement of which he is a symbol and which still bears his name in history (Jacksonian democracy) pushed democracy and freedom forward in a decisive way. His fight against the Bank of the United States and the concentrated, abusive power of private wealth with which it was identified became one of the most important "democratic moments" in American history. His stance against South Carolina's secessionism was at least as critical a "democratic moment", if not more so. And in the process Jackson defined the concept of American democratic nationalism that essentially remains today, though the concept of "nationalism" has become more ambiguous in 2009.

Yet his other most notable accomplishment, the Indian Removal Act, was a shame and huge human disaster. And wrong even by the standards of his own time.

Yet the democratic movements which flourished outside the South in the following decades, most notably the antislavery and women's-rights movements, and even the (largely unsuccessful) movements to defend Indian rights, used the grassroots methods and democratic concepts that emerged from Jackson's movement. Andrew Jackson isn't a symbol of popular democracy because he was a porcelain saint or because he never did anything seriously bad as President. He is a symbol of democracy because he became a decisive and effective leader of a movement that was bigger than he, a movement which expanded democracy in a manner that allowed the country to defeat the slaveowners' revolt of 1861 and continue on a democratic path.

Without trying to draw analogies between Jackson's and Obama's Presidencies, this historic blunder by Obama is a reminder that, whatever his personal limitations, right now he represents and leads a democratic movement that is larger than he is, a movement that is not identical with the Democratic Party and which will go in directions with which Obama himself will not have wanted and of which he may not always approve.

Politics, in other words, takes place in the world of flesh and blood. I don't say this in any way to minimize how bad a decision the continuation of military commissions is. I say it because it's important to keep a clear view of what the real existing political parties are like and what they stand for. American elections are largely a binomial choice. If you don't like what the Democrats are doing, you vote for the Republicans. If you don't like what the Republicans are doing, you vote for the Democrats. I'm interested in being realistic about the good and bad sides of the real existing democratic movement in America. That movement is only very lightly represented in the Republican Party, if at all.

But favoring primary candidates who support the rule of law more faithfully, e.g., Pennsylvania in 2010, is a perfectly valid option for Democrats unhappy with the Democrats' embrace of a truly bad Republican Party policy like military commissions.

I hope someone will challenge Harry Reid for the Democratic Senate leadership, too. Having a Democrat who is willing to be a partisan hard-hitter and able to slough off the wrath of the Pod Pundits for not making "bipartisanship" his dearest value would be much, much better than having Harry Reid there.

Tags: barack obama, military commissions, rule of law

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