Double Vision at the White House?
My post yesterday on how President Obama, in his first year, has preserved about 99 percent of George Bush's legal positions in combating terror prompted a strong reaction today from the White House, which took issue with a few of my points.
Let me acknowledge from the outset I did overlook one legal position that's changed: Obama has made it tougher for the government to hold back evidence in civil cases on the grounds that it would harm national security. That's the so-called "state secrets" privilege. But is that a major change? The Obama Administration had continued, after all, to assert "state secrets" in some of the cases that have been held over from the Bush Administration.
But the other points largely were taking issue with my analysis. And as I thought all that through, it struck me that the White House reaction shows the real bind Administration is in on these issues and how schizophrenic its approach can seem to people.
On the one hand, it's trying to pacify a liberal base that cares deeply about civil liberties (hence, it is absolutely, positively not continuing the policies of the evil Bush Administration). On the other hand, it has to assure the general public it's doing all it can to fight terrorism and keep America safe (hence, it's taking a tough line in the war on terror…like, oh, that guy we don't like to talk about).
But the facts are the facts. A year after George W. Bush left town, most of his substantive legal positions in the war on terror remain.
Take the Military Commissions Act, which I said yesterday was basically the same as Bush's system, except for "minor tweaks." Those tweaks were largely over the kind of evidence that can be admitted—the new law excludes statements rendered as a result of cruel, inhuman and degrading treatment, for example, and shifts the burden of proof on the reliability of hearsay.
Those are tweaks, because those cases weren't really designed to rely on that kind of evidence, and judges were tending to exclude it anyway.
As for the definition of "enemy combatants," although it's true that the Obama Administration is no longer using the term for Guantanamo detainees, it's also true that it will identify future terror suspects in much the same way as Bush. That's why a lawyer for ACLU, when hearing about the so-called policy "changes" said, "In key elements they are a continuation of the Bush administration." And a lawyer for the Center for Constitutional Rights said, "This is really a case of old wine in new bottles."
As for the detention of terror suspects, it's true the Obama White House backed off a plan to seek federal legislation authorizing indefinite detention. But it's also true the Obama Administration has taken the position that the government can indefinitely detain the top terror suspects now held at Guantanamo. And it's taking that position even if the terror suspects, after they go through criminal trials, are found not guilty. The government can detain them anyway.
So if you think about it, that means even the biggest policy break of this administration from the last---the decision to try Khalid Sheik Mohammed and four other 9/11 plotters in federal court instead of military trials—could actually be less significant than it appears. The verdict may not matter—as my friend Mike Isikoff put it, "Heads I win, tails you lose."
When the Obama Administration first announced it would hold the 9/11 trials here in the United States, civil libertarians cheered, calling Attorney General Eric Holder a hero.
But how is that heroic? How is it heroic to announce with great fanfare you're going to try top terror suspects in federal court—but then declare in a Senate Judiciary Committee hearing that, "Failure is not an option; these are cases that have to be won?"
How is it heroic to give these self-confessed, murderous terrorists all the rights and protections of a criminal trial, when you're also taking the position that they won't be released if acquitted?
How can you have it both ways?
If you can hold them once they're acquitted, doesn't that completely undermine the arguments for trying them in federal courts in the first place—that you were trying to restore America's image as a nation of laws? But if the verdict is meaningless anyway, how does that hold out our system of justice as a beacon of fairness? And how would that outcome be seen in the Muslim world?
That's all before you even get to the serious question of whether these trials run the risk of perverting our entire system of justice. If "failure is not an option; these are cases that have to be won," there could be an enormous temptation to bend the rules so these self-confessed, murderous terrorists are convicted.
And since the standards are the same for everyone, that could water down the rights and protections for normal citizens in run of the mill cases down the road.
Other legal analysts—including committed civil libertarians—have breezily glossed over the government's fallback to "indefinite detention." And they've dismissed the notion that KSM and the others could, as they put it, get off on a "technicality." Excuse me. Federal rules of evidence, the Speedy Trial Act, the Fifth Amendment? Those are now "technicalities?" The fundamental intellectual and legal contradiction of that position is mind-boggling to this observer.
Sometimes there's danger in trying to have it both ways. And either way, it's an awfully fine line to walk without falling over the edge.
