Barack Obama, Torture, and Habeas Corpus: Unsurprised but Shocked Nonetheless

The liberal and progressive civil libertarians I know who strongly supported Barack Obama’s "change" campaign last year are having a difficult time processing some deeply disturbing recent developments in Washington.

In one of its most horrifying acts, the Obama administration filed a telling brief in federal court last February. In two sentences, this brief declared that the Obama Department of Justice essentially embraced the Bush administration’s position on and against habeas corpus. After the Supreme Court ruled last June in Boudemiene v. Bush that Guantanamo detainees possess the right to a hearing to contest the charges against them, the Bush administration simply started sending so-called enemy combatants from around the world to the American prison camp in Bagram Air Force base in occupied Afghanistan. 

Since Afghanistan is a "war zone," the Bush White House argued, prisoners there have no constitutional rights. Never mind that many of these captives were not prisoners captured on a battlefield in Iraq but were people abducted from their homes and workplaces in other countries and flown by secret U.S. jets to be indefinitely incarcerated at Bagram. 

In its February brief, the Obama justice department defended this Orwellian policy, arguing that such prisoners can be locked up without any constitutional rights for an indefinite period of time just as long as they are incarcerated in Bagram instead of Guantanamo (see Glen Greenwald, "Obama and Habeas Corpus: Then and Now," Salon, April 11, 2009, at www.salon.com/opinion/greenwald/2009/04/11/bagram/index.html).

Thankfully, as Glen Greenwald notes, "last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled — John Bates — is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge.  In his decision, Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind" (Greenwald, "Obama and Habeas Corpus").

Of all the things I’ve learned about the Obama administration in preparing upcoming talks about the new president’s First Hundred Days, none has jarred me more than its position – shot down by a pro-executive, Bush-appointed judge – on habeas corpus.

Last Thursday (I am writing on Tuesday, April 21, 2009), the Obama Justice Department expressed its determination to protect CIA torturers from prosecution after it released memorandums on the Bush administration’s extreme torture practices.  Those memorandums only saw the light of day because of a lawsuit by the American Civil Liberties Union. By announcing in advance that it will not go after the direct torturers, the Obama administration has destroyed its ability to use the threat of prosecution as a way of getting CIA personnel to testify against the top officials who formulated the Bush torture policy. 

As the Justice Department released the memos spelling out brutal CIA interrogation, Obama said that "nothing will be gained by spending our time and energy laying blame for the past" (NYT, April 17, 2009). This from a former and supposedly liberal law professor, someone who should be expected to understand that one investigates and punishes past human rights crimes precisely in order to discourage and prevent their occurrence in the present and future.

As the New York Times reported today, citing top White House aides, Obama "opted to disclose the memos because his lawyers worried that they had a weak case for withholding them and much of the information had already been published in the New York Review of Books, in a memoir by George Tenent, the former CIA Director, and even in a 2006 speech by President George W. Bush." (NYT, 4-21-2009, A1). 

Revealingly enough, when he went to Langley last week to reassure CIA staffers of his safety to their interests, Obama said that his decision to release the torture memos was the "most agonizing" call of his presidency so far.  I heard that line on the evening news and turned off my television. 

Wow. The was his "most agonizing" decision so far – reluctantly agreeing under legal compulsion (!) to release documents showing a previous administration’s human right crimes?   Not his decision to launch missiles and expand illegal wars certain to kill children and cause other civilian casualties in Pakistan.  Not his decision to hand out yet more hundreds of billions of taxpayer dollars to Wall Street parasites while poverty rises across the nation and the world.  Not his decision to increase the war and military budget while destitution expands at home and abroad. Pretty revealing.

Do I sound surprised? I’m not.  With the possible exception of Glen Ford and Bruce Dixon over at Black Agenda Report, no human being on Earth has done more than I have to warn U.S. and world citizens about the deceptive, fake-progressive, and deeply conservative nature of Brand Obama, who I have dubbed "Empire’s New Clothes." My first warnings were issued (I am not joking) in the late summer of 2004, just two days after the Democratic Convention Keynote Address that turned Obama into an overnight national and even global celebrity. You can look it up and read it online: "Keynote Reflections," at http://www.zcomm.org/znet/viewArticle/8128.

I’m a highly politics-skeptical libertarian socialist from the South Side of Chicago who watched Obama build his fake-progressive power-seeking career in my home city and in Springfield, Illinois (home of the legendarily corrupt Illinois state legislature where Obama served between from 1996 to 2004) during the late 1990s and the opening years of the new millennium. Speaking to a budding progressive 20-something Democratic Iowa presidential Caucus campaign activist in late December of 2006, I said the following: "well you can work for Kucinich.  He’s the closest thing to a left candidate in the Caucus.  But he won’t have any to money to hire you. Hillary will have a lot of money but she’s an evil imperialist and she murdered health care reform and her negatives will probably make her un-electable.  Edwards is the least objectionable of the ‘viable’ candidates and will say some remarkable things you can feel good about against economic inequality and poverty and for labor rights. He can’t win, of course: he talks against class inequality like he means it. Obama will make you sick with centrist equivocation and deception.  He’s an ideological twin to Hillary, but he’s the next president.  If you want to work for the next president, work for Obama. The ruling class and the liberal primary voting base both find him irresistible for different but intimately interrelated reasons. The power elite’s got him right – they know what he’s really about.  The liberal base is pretty deluded and in love with him, which, by the way, is part of why the masters will support him. That’s a killer combination."

So nothing about Obama ever surprises me.  I never had any "hope" about him.

Still, it’s one thing to know that a grisly crime is likely to occur and to actually witness that crime’s commission. Its one thing to anticipate Obama’s many nauseating accommodations with – and advance (under new "liberal" cover) of – Empire and Inequality, Incorporated.  It’s another thing to watch the worst aspects of the predictable ugliness unfold.

If it didn’t sound insensitive to the untold masses who have been subjected to U.S.-imperial water-boarding, rendition, sleep deprivation and the like, I’d say it’s a form of torture.

P.S. 6PM Tue. April 21: Ok so I got home after sending this essay off earlier in the day and put on the ABC evening news and the first story is that Obama has relented somewhat and appears to be bowing to pressure for him to perhaps let Eric Holder maybe possibly investigate John Yoo and Bybee et al.,  But this twist does not surprise me either; Obama is a crafty politician  — very tricky —- and has apparently heard that his nauseating position on torture non-prosecutions was just too much for even many elite liberals to take.  I heard Michael Ratner of the Center for Constitutional Rights (I hope I have that organization’s name right) just absolutely destroy Obama’s "let’s look forward, not backward" statement on the PBS Evening News yesterday night.   Whether investigations will really happen and go anywhere remains to be seen.  I’m skeptical since so many key Democrats signed off on Bush torture practices.  And of course to be really serious you’d have to go after Cheney and Bush II. But pushing back from the grassroots and even the grasstops (i.e. Ratner et al.) is important and good…more of it is required; much more.


Paul Street’s first book was Empire and Inequality: America and the World Since 9/11 (Boulder, CO: Paradigm, 2004).  His latest book is Barack Obama and the Future of American Politics (Boulder, CO: Paradigm, 2008)

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