28 Sep Obama, Hypocrisy, and Presidential Control Over Preventive Detention
The Washington Post has a blistering editorial on the Obama Administration’s quiet decision last week not to seek legislative authorization for the preventive detention for terrorist suspects. It is the, the Post declares, a “politically expedient and intellectually dishonest route.”
Like President George W. Bush, President Obama now asserts that the 2001 Authorization for the Use of Military Force gives him the right to hold some terrorism suspects indefinitely without trial. At Guantanamo, this is expected to affect 50 or so prisoners who, the administration has determined, can be tried neither in federal court nor before a military commission but are too dangerous to release.
The White House and its allies knowingly engage in a distortion. The question isn’t whether the president may indefinitely hold some detainees — the courts have ruled that he can under certain circumstances — but what process should be available to those subject to such detention. This is the debate that Mr. Obama now lacks the courage to engage.
The Post reserves its toughest criticism for the “civil liberties” community.
If the administration’s abdication is irresponsible, the reaction of the civil liberties community has been breathtakingly hypocritical. The American Civil Liberties Union has consistently opposed any indefinite detention regime and pushed for detainees to be charged in federal or military courts or released. So we wouldn’t expect them to join us in criticizing Mr. Obama for failing to seek a new legal regime. But it is odd that the same policy which, when pursued by the Bush administration, constituted “thumbing its nose at the Constitution” and putting a “stain on America’s name at home and abroad” now elicits nothing but a few measured tsk-tsks.
Putting aside the rather obscene spectacle of the warmongering Post criticizing human-rights groups for being too soft on civil liberties, I think it is a mistake to interpret the silence of those groups as indicating their approval of Obama’s indefensible plan. Glenn Greenwald is absolutely right — allowing Obama to tie his indefensible preventive detention regime to an existing statute (the AUMF) is a lesser evil than giving Congress an opportunity to pass a new statute that might be far worse: Regardless of what motivated this, and no matter how bad the current detention scheme is, this development is very positive, and should be considered a victory for those who spent the last four months loudly protesting Obama’s proposal. Here’s why: A new preventive detention law would have permanently institutionalized that power, almost certainly applying not only to the “war on Terror” but all future conflicts. It would have endowed preventive detention with the legitimizing force of explicit statutory authority, which it currently lacks. It would have caused preventive detention to ascend to the cherished status of official bipartisan consensus — and thus, for all practical purposes, been placed off limits from meaningful debate — as not only the Bush administration and… Read more »
This kind of position is why Republicans and non-Republican conservatives attack the media and academia as bastions of hypocrisy. Bush was attacked for acting in this manner. And yet here a discussion has begun on why it’s actually, really a good thing that Obama has decided to act on his own exercising his executive authority. When groups like the ACLU and Human Rights First change their tune based on the political party in the White House, which please be honest, is what has happened here, they demonstrate a level of hypocrisy that academia, if not the media, should be honest and responsible enough to call them on. These groups deserve no respect for this flip-flop, yes flip-flop, without explaining why the criticism that was ‘valid’ enough to throw at George W. Bush shouldn’t also be laid at the feet of Barack Obama.