Monday, November 10, 2008

Okay, Maybe He Actually Will Be A Great President

I'm trying to be critical of the incoming Obama administration. But they are really making it difficult:

WASHINGTON — President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice...

Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

A third group of detainees _ the ones whose cases are most entangled in highly classified information _ might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks...

The plan being developed by Obama's team has been championed by legal scholars from both political parties. But it is almost certain to face opposition from Republicans who oppose bringing terrorism suspects to the U.S. and from Democrats who oppose creating a new court system with fewer rights for detainees.

I can't stress enough that normalized secrecy is one of the scariest legal ideas there is. Public oversight is the only thing that keeps governments from imprisoning or abusing whomever they want. But while it's true that a new, secretive court system could deprive these high-stakes prisoners of their rights, it will almost certainly not be as bad as the totally isolated military tribunals and indefinite secret imprisonment they currently face. Further, I'm not even sure I'd want to argue that every potential terrorist be tried completely in public, since there is a real reason that classified information exists, and many of the prisoners aren't United States citizens anyway. The point isn't to make their trials easy at the price of contaminated intelligence, after all, it's to define their legal status and ensure that we don't violate their human rights.

Just because I disagree strongly with the way the Bush administration handled the problem, in other words, doesn't mean that I don't see the problem they were trying to solve. By encouraging abuse and fear with the secrecy and legal limbo of foreign prisons and "insurgent" prisoners, they became the monsters that they were trying to hunt. But it is only against the background of understanding why they did what they did that we can strongly urge the creation of a new system. There are no absolutes, in law: it's all an incredibly difficult balance, with incredibly high stakes. Part of what gives me hope about issues like this is Obama's history of legal scholarship, and the fact that he at least comes across as the smartest president since Nixon (with the added bonus of not being batshit insane).

The devil is obviously in the details here, and they are scant. But this is just about the best possible sign one could hope for right now. As far as I can tell, the incoming administration is getting good marks so far on its first big test – a test that I did not fully expect them to pass at all before today. Maybe it's just the low expectations of the last eight years, but the decision to promptly follow through with this particular issue truly impresses me. Could it be, that an Obama Administration will be all it's cracked up to be?

That the news comes on the morning after the NYTimes reveals extent of secret U.S. strikes in foreign countries without their authorization, of course, makes things a little more complicated.


  1. It's amazing, isn't it? Thank you for this post. While his proposed solution isn't all that I would have wanted, you are make a good case that the complexities warrant it. And this solution is so, so much better than letting the situation linger in Guantanamo for even one more day. Hats off for tackling it immediately and head on!

  2. If you want a taste of some more complexities, check out Glenn Greenwald's interview with ACLU executive director Anthony Romero. There's a ton of great stuff in there, but for a start he's got this to contrast with my point about law never being absolute:

    "The Fourth and Fifth Amendments are brilliant in the fact that they are absolute. You have those kind of core rights regardless of what the crime is that's brought against you. And I understand it represents some conundrum because the Bush administration has wholly screwed it up by torturing these individuals first, and then getting confessions from them afterwards. And established the Supreme Court precedent -- what was it -- in 2004 a case I think that came out of Arkansas, where police officers were going in and getting confessions from people without reading their Miranda rights, and they were going in afterwards and then reading them their Miranda rights, and still getting the confessions afterwards. This conservative Supreme Court said, you can't do that. 'Cause once you violate the person's rights, you can't clean up that confession by doing it after the fact, and trying to use the second confession and disregarding the first one."

    He's wrong about that first bit, though, or maybe just optimistic. Not in principle, since the constitution really should work like that (and, in practice, often does). But the Bush administration's treatment of detainees is hardly anything new – our history is littered with violations of the 4th and 5th. Right or wrong, that's the legal tradition that we're working with.

  3. Completely true, but we lie about it to ourselves in the public narrative and that makes me crazy.

  4. I'm about a week behind in reading up on this blog, so probably no one will ever see this relevant comment, but nevertheless: