Day after tomorrow will be one month since Obama took office.
A month. It’s early yet, and as watchful citizens, we can almost still keep track (as much as is possible from our outside vantage point) of the balls in the air: economy writ large as well as industry-specific, Social Security and other entitlements, health care, energy, and of course, the war(s).
Which is why I get, in theory, the let’s-not-waste-time-and-momentum-on-looking-backward thing. I do and I realize wholesale investigation and prosecution of Bushco et al is a mind-bendingly ginormous undertaking that could subsume not just the Executive, the Judicial, the Legislative, but also you and me and our pets. I get that and I’m as pragmatic as [at least half of] most folks.
I still don’t get, however (and I’m not going to shut up, moreover), how we can be expected to swallow the failure to investigate and prosecute torture. Closing Gitmo=good. Trying to wrap judicial minds around what we now do with detainees=sort of good, if we’re actually doing that. Stating intent to not investigate/prosecute low-level functionaries=debatable but not entirely the worst thing. With me so far?Okay then, no surprise that I agree that lack of investigation/review/prosecution of Administration officials responsible for torture policies and practice=bad. Very much so.
But how naive of me to have thought that would be the worst of it. How naive of me to not have believed earlier hints that our new president might actually carry on some of the worst of the worst (and that’s saying a whole lot right there) of the Bushco Regime’s Patently Unsuccessful Practices in the Dark Arts of Enhanced Interrogation.
the nominee for C.I.A. director, Leon E. Panetta,
opened a loophole in Mr. Obama’s interrogation restrictions. At his
hearing, Mr. Panetta said that if the approved techniques were “not
sufficient” to get a detainee to divulge details he was suspected of
knowing about an imminent attack, he would ask for “additional
Mr. Panetta also said the C.I.A. might continue its“extraordinary rendition”
program, under which agents seize terrorism suspects and take them to
other countries without extradition proceedings, in a more sweeping
form than anticipated.
Before the Bush administration, the
program primarily involved taking indicted suspects to their native
countries for legal proceedings. While some detainees in the 1990s were
allegedly abused after transfer, under Mr. Bush the program expanded
and included transfers to third countries — some of which allegedly
used torture — for interrogation, not trials.
Mr. Panetta said
the agency is likely to continue to transfer detainees to third
countries and would rely on diplomatic assurances of good treatment —
the same safeguard the Bush administration used, and that critics say
First of all, allegedly?Really?
Secondly, relying on “diplomatic assurances of good treatment” implies that the US is trading with legitimate diplomatic currency, but how exactly doesthat work when, with the other hand we are devaluing that currency, and the lofty idea of returning to our former international prestige, by continuing on with some of the same outlaw Bushco practices?
the nominee for solicitor general, said that someone suspected of
helping finance Al Qaeda should be subject to battlefield law —
indefinite detention without a trial — even if he were captured in a
place like the Philippines rather than in a physical battle zone.
Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr.
made at his own confirmation hearing. And it dovetailed with a core
Bush position. Civil liberties groups argue that people captured away
from combat zones should go to prison only after trials.
I know, Obama is still building a foundation and lord knows there are plenty of other things the American people are justifiably preoccupied with. Like I said above, it’s early yet. EvenGreenwald allows this is true.
Constitutional questions that linger from the dark Bush/Cheney era
remainunresolved thus far. Obama has not yet
embraced or rejected most of them. And that is by design. There was
that first week of Executive Orders that made some nice symbolic
gestures and, in some cases, took some tangible steps. In other cases,
the Obama administration has already evinced some of the truly
disturbing tendencies of its predecessors. But overall, the truly
controversial and weightiest questions have been pushed off to the
future (e.g., he ordered Guantanamo closed but has not yet said
whether he wants to retain the power to imprison accused Terrorists
without a real trial). In sum: who and what Barack Obama is when it
comes to the restoration of our core civil liberties and Constitutional
protections remains to be seen. Those fights are still ones that will
We have got to keep our eyes open going forward, though. It’s going to be a challenge as we move through the complexities of Obama’s first term but when the chatterers start chattering about “political expediency” and “not wanting to damage the office of the presidency” and “no matter what, things are better with Obama instead of Bush,” remember this:
than just sand-papering the roughest edges — will come not from having
a kinder-hearted and more magnanimous leader, but only from a
restoration of the legal and Constitutional framework that makes a
President’s magnanimity irrelevant, since his powers are exercised
transparently and with real checks and limits. It remains very much an
open question whether that will happen. There are some preliminary
signs that it could, and some much more concrete signs that it won’t —
at least not without a very concerted fight.