I share all of Glenn Greenwald’s concerns about Obama’s speech. I think Glenn is especially poignant when he laments that millions of Democrats will now begin supporting infringements on civil liberties that they decried when they were done under Bush. And I think this especially important because it impacts me personally. I have long predicted that Obama would feel compelled to detain at least a small handful of prisoners indefinitely, and without trial. I was, therefore, disappointed but not at all surprised to hear Obama admit as much today. But I have one major difference with Greenwald. He argues quite convincingly that what is wrong under one president is wrong under another, and that to switch principles is simple hypocrisy. I think that is generally true. But I also am willing to listen when there is consensus on an issue between people as different as George W. Bush and Barack Obama. I have the gravest reservations about the idea of introducing indefinite detentions for even a handful of people. But I am willing to hear out the case. Obama didn’t make the case today. He needs to. I want to know precisely why it is that these handful of detainees cannot be tried in either a regular court of law or in some kind of revised military commissions court. I have my suspicions as to why this might be the case, but I want to hear the reasons spelled out in plain english.
Maybe it is as simple as an irredeemable violation of due process rights. If a dangerous criminal cannot be tried because they were denied a lawyer and a speedy trial by the Bush administration, is that something that Military Commissions cannot overcome? Is it something to do with the illegally collected signal intelligence? Whatever it is, we need to have the clearest understanding of the necessity of this kind of unprecedented violation of the most basic tenets of law. Only armed with this information can I make a fair determination of the wisdom of this move. It is too simple to insist that the law is the law and what was wrong under Bush is wrong under Obama. That’s the default position, but it is not necessarily the only position. There are presumably some reasons why the Obama administration has rethought their positions on these issues. We need a better understanding of those reasons.
Most importantly, we must resolve the detainee issue in a way that causes the least lasting damage to our laws and Constitution. It may be the case that national security compels us to do some violence to our laws. But, if so, we certainly can minimize that damage and make sure it is not ongoing.
I’ll be waiting for explanations.
