OK

Glenn Greenwald writes:

Obama worked from the start to preserve the crux of the Bush/Cheney detention regime. Even with these new added levels of detention review (all inside the Executive Branch), this new Executive Order is little more than a by-product of that core commitment. [. . .] Indefinite detention and military commissions are continuing because Obama worked from the start for that goal -- not because Congress forced him to do so.

[. . . F]ormer Bush officials and right-wing Warriors are ecstatic. The anti-Muslim McCarthyite Rep. Peter King (R-NY) issued a statement this morning, as quoted by The Post, which lavished Obama with praise: "I commend the Obama Administration for issuing this Executive Order. The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities." That perfectly captures the legacy of Barack Obama and civil liberties.

(Emphasis supplied.) While there is a lot wrong, in my view, with the newly announced policy (3 points in particular - (1) instead of directly providing for court review of Executive Branch decisions on combatant status, the new EO expressly recognizes habeas rights, an unwieldy and cumbersome procedure that should not be necessary); (2) the new policy is limited to Gitmo detainees as opposed to all terror detainees no matter where held (indeed, this is by far the most egregious problem with the new policy and Greenwald and others have not noted this problem to my knowledge) and  (3) the combatant status review occurs every 3 years which is entirely too long a period. It should occur AT LEAST once a year.) But these serious failings get lost in the shout of "Obama = Bush" on this issue. The shout is ineffective, and more importantly, inaccurate. I'll explain why on the flip.

 

This disagreement I have with Glenn on this particular issue is of longstanding. FTR,  I deeply respect Glenn, consider him a good friend, an invaluable advocate and a deeply honest and principled person. This is simply an honest disagreement on an important issue, not a personal dispute. I first took issue with Glenn's interpretation of Obama's state policy goals as "like Bush" back in a February 22, 2009 post, which I recapped a bit here yesterday. It is an extremely long and detailed post that covers a range of issues but here I want to focus on the claim, inaccurate in my view, that the Obama policy is a continuation of the Bush policy. As iI stated in my  February 2009 post, this strikes me as a case of amnesia as to what the Bush policy was and what the Bush legal claims were. In February 2009, I wrote:

Glenn portrays the power to indefinitely detain "alleged combatants" as something new. Clearly in a theater of war it is not. (Glenn's objection appears to be more directed at the scope of the "theater of war." And yet, the reality is that terrorists do operate all over the globe. In effect, there is an expanded "theater of war.) We used to call such detainees prisoners of war, and the Geneva Conventions applied to such detentions.

To me that is the key point to answering Glenn's question "when Bush and Cheney did preventively imprison large numbers of people, was I in favor of that or did I oppose it[?]" I opposed it BECAUSE the Bush Administration insisted that the Geneva Conventions did NOT apply to the detentions. This is no small matter. It is important to remember that the key point of contention on detention policies was the application of the Geneva Conventions and the Constitution.  [. . .] In essence, the Bush Administration denied the applicability of the Geneva Conventions, but of course the case turned on the applicability of the habeas statute then in effect. But the concept is not dissimilar to what is mandated by the Geneva Conventions.

The Bush Administration argued that the courts had no say in the matter. The Court rejected the Bush Administration argument in Hamdi. Afterwards, the Bush Administrations created Combatant Status Review Trials. In Hamdan, the Supreme Court found them to be inadequate  constitutionally. The Court presented the question in this fashion:

[T]he question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider

“(i) whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)©, 119 Stat. 2742.">/p>

The answer was no - the Bush Administration's review did not comply with the Constitution:

We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

. . . For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963) , overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992) . Here that opportunity is constitutionally required.

The Boumediene Court found that the Bush Administration scheme did not meet these requirements. The Obama Administration detention regime does meet the bare minimum constitutional requirements. Obama is not "like Bush" on this point.

However, the bar MUST be higher. In the rush to shout "like Bush," the true flaws in the Obama Executive Order are being overlooked. In this sense, Glenn is not only wrong, in some ways, more importantly, he is being an ineffective activist. In a later post, I will write in detail about what I think is wrong with the Obama Executive Order.

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