Oh, that? I bumped into a door.
By Thoreau
Interesting article about executive orders that might be issued early in an Obama administration. No mention of ordering detainees transfered to the custody of law enforcement and charged with crimes in courts of law. No mention of ordering an end to torture. No mention of ordering the NSA to seek FISA warrants for surveillance of domestic communication.
I’m sure that these omissions merely reflect the great care that Obama is giving to these issues, and his determination to explore the matter as thoroughly as possible to make sure he gets it done right before issuing orders that might curtail the powers of the branch of government that he will soon command. That’s the only possible explanation.
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Comment by Mithras —
November 9, 2008 @ 2:12 pm
Impeach!
Comment by Nell —
November 9, 2008 @ 2:22 pm
It’s pretty obvious from the list mentioned that they’re going for issues on which they have big popular-opinion majorities, and which can be achieved cleanly by executive order.
Undoing the lawless detention policies of the current administration is more complicated than that. I believe I have enough credibility on those issues not to be taken for a mindless Obama enthusiast when I say that detention and torture are simply not in the sweep-it-away-by-executive-order category.
Had Congress not passed the Military Commissions Act, it would be more justifiable to be outraged when no immediate executive-only action reverses the horrors. But Congress did, and may God damn those Democrats who let it come to the floor as well as those who actually voted for it.
Your imputation of bad faith from the get-go is noted. You might end up being shown absolutely justified in taking that stance. But here, with months to go before inauguration, before we have any concrete idea of what the new administration’s approach to reversing the Bush-Cheney detention and torture policies, that attitude pisses me off something fierce.
Comment by Thoreau —
November 9, 2008 @ 2:28 pm
Nell,
I completely agree that legislation is needed to make sure that this never happens again. But he could still redress the immediate harms with executive orders. Only legislation can prevent some future person from being sent to a legal black hole indefinitely, but an executive order could immediately help those currently trapped in legal black holes.
Comment by Mithras —
November 9, 2008 @ 3:02 pm
From the article:
Sounds careful and deliberative, unlike the current occupant of the White House. Who will remain the occupant until January 20th, so nothing Obama does today will have any immediate benefit to a prisoner at a black site. (Other than whatever salutary effect on his jailers Obama’s victory already accomplished.)
It’s been five days since the election. There are likely to be fairly powerful constituencies advocating for the maintenance of the status quo on the issues Thoreau raised. A precipitous announcement before those parties have been roped into a deal is pointless.
Comment by change —
November 9, 2008 @ 4:00 pm
“. . . so nothing Obama does today will have any immediate benefit to a prisoner at a black site.”
In a post-racial America, should the color of the site really matter?
Comment by Hal —
November 9, 2008 @ 4:50 pm
Gee Thoreau, it’s a wonder why the democratic party doesn’t embrace you with open arms. Barely a week has passed and you’re already gunning for the knee caps.
Comment by foolishmortal —
November 9, 2008 @ 8:56 pm
You are in danger of slipping into High Naderism, Mr. Thoreau. You may want to watch that.
Comment by Nat —
November 9, 2008 @ 10:45 pm
Or maybe, just maybe, it could be that the article is only a page long (on my screen, anyways) and doesn’t go into much detail beyond discussing the fate of a few Bush administration greatest hits. I doubt that the four dozen advisers who were working on this have only focused on minor progressive issues like federal funding for stem cell research. But how could we tell from that article alone? Besides, many of Bush’s executive orders were made in secret, often without the knowledge of Congress, which would make it difficult to start writing countering orders. I hope Obama declassifies as much of this garbage as possible – but right now, he’s presumably just as much in the dark as we are.
I’m just as eager as anyone to see Obama dismantle the national security state, but I’ll wait to see what he actually does as president before I start accusing him of being Bush-lite. A brief and thinly-sourced newspaper article that simply ignores these issues altogether isn’t much of a cause for alarm. I’m mostly just pissed that the WaPo apparently didn’t bother to *ask* about these policies.
Comment by Jamelle —
November 9, 2008 @ 11:27 pm
Yeah, I read that too, and immediately thought “wow, Obama is omitting something from that list of executive orders. I wonder what it is?”
On this note, there is a really good essay in the NYT Magazine over Congress’ role in expanding the power of the presidency. You should read it (and I wrote a blog post on it here, if you’re interested)
Comment by Katherine —
November 10, 2008 @ 1:20 am
It’s not an article about executive orders that Obama might issue. It’s an article about Bush executive orders he might reverse. I do not believe that the torture policies, FISA, etc. were accomplished via published, unclassified executive order. I do not trust Obama nearly as much as I would like to on these issues, but you just use them as an excuse for cheap shots at Democrats without reading what the damn article says.
Comment by Spoker —
November 10, 2008 @ 5:51 am
It is good to see that the new administration has also found a way to give bailout funds to the trial lawyers and not just the corporate types. Very creative!
Comment by Donald Johnson —
November 10, 2008 @ 8:16 am
I’m more on Thoreau’s side here–as a proven slippery politician, Obama deserves credit when he does something right and blame when he doesn’t, and suspicion of what he might do before he does anything.
Comment by Donald Johnson —
November 10, 2008 @ 9:46 am
Though what I expect from Obama is that he will end torture and indefinite detention because there are no political costs for him (torture supporters will vote Republican for the most part) and considerable benefits, especially overseas, where there will be much rejoicing. (He can then squander his prestige if he chooses to do as Tom Friedman seems to hope, by launching air strikes whenever he wishes and thumbing his nose at Euroweenies who protest.)
He won’t advocate prosecution of Bush Administration war criminals because there would be huge political costs in doing that.
And he’ll support massive human rights violations when there is a political benefit to doing so (as when he supported Israel’s bombing of Lebanon in 2006).
Comment by Hesiod —
November 10, 2008 @ 9:54 am
Ummm…an article in the associated press this morning discusses how Obama plans to move quickly to try most of the Guantanamo detainees in the US federal court system, and create a hybrid system to give detainees more rights in cases where the only evidence against them is of a highly sensitive, classified variety that would reveal sources and methods.
http://news.yahoo.com/s/ap/20081110/ap_on_el_pr/obama_guantanamo
Others would be released, or sent back to their home countries.
Guanatanmo is going to cease to exist as a prison.
Comment by Derek Copold —
November 10, 2008 @ 9:59 am
I’ll throw in with the wait-and-see crowd. Until Jan. 20, the man has no official power beyond Senator. Too, if he tips his hands a bit early the current administration might try to undermine him by changing some “facts on the ground” in plausibly deniable way. I’m sure they’re doing something like that right now with a lot of things. No point in giving them more guidance than they already have.
Comment by Mr Duncan —
November 10, 2008 @ 10:02 am
So did the NYT get scooped? Or did they just find the gitmo thing “not fit to print?”
Comment by Hesiod —
November 10, 2008 @ 10:08 am
The NYT got scooped. My guess is because Laurence Tribe spilled the beans to the AP.
Comment by Picador —
November 10, 2008 @ 11:28 am
I, too, will wait until January 20 to pass judgment. As of late that morning, every person tortured and every non-combatant killed by US military or intelligence personnel, every person detained without due process, and every American whose communications are monitored in the absence of a judicial warrant based evidence of a crime, will be the responsibility of the Democratic Party. They will have no more legal or constitutional excuse for these behaviors than the Republicans did, and they will not even have the political justification that they are carrying out the demands of their constituents.
So, while I’m reserving judgment, I have to admit that I fully expect that the Democrats will have proven themselves entirely unfit to lead by the afternoon of January 20.
A question for the Obama apologists out there: if one of your (innocent) relatives were kidnapped by CIA operatives and tortured to death because Obama took his time dismantling the US torture apparatus so as to protect his influence with the political establishment, would you be as supportive of that decision as you seem to be now? Because that’s the test you ought to be applying to these questions. People are going to find themselves in that position come January 20. More wedding parties are going to be bombed by US forces. More cab drivers are going to be sold to the US military by bounty hunters and tortured to death. More peace activists are going to find themselves under COINTELPRO-style surveillance. I find your complacency about Obama a little difficult to handle given these realities.
Comment by Hesiod —
November 10, 2008 @ 11:57 am
Did Picador even read the link to the story I posted here this morning?
There’s a difference between healthy skpetcism, and morose cynicism.
It’s almost as though Libertarians will be DISSAPOINTED if Obama actually does promote respect for civil liberties and human rights.
You are so predisposed to bitch about all things Government, you miss the forrest for the trees.
Comment by Hal —
November 10, 2008 @ 12:38 pm
You are so predisposed to bitch about all things Government, you miss the forest for the trees.
Actually, it’s more like missing the forest for the oddly shaped cytoskeleton they’re complaining about in a small sub-cluster of cells on an individual tree in that forest.
OTH, still would nice to see Thoreau post about the AP story with even a tenth as much passion as he does when he detects even a slight hint of betrayal of his issues.
Comment by Eric the .5b —
November 10, 2008 @ 1:12 pm
Not everyone reads every link a commenter throws out before responding to the actual blogger’s post.
Comment by Thoreau —
November 10, 2008 @ 1:22 pm
Well, given that the AP story included a hint that there might be a new DIY court system invented for these purposes, any passion that I might have put into a post would have gone in quite the opposite direction that you were probably hoping for.
Comment by Eric the .5b —
November 10, 2008 @ 1:27 pm
Man, what is with the Blues who act so wounded when people don’t show requisite faith in their politicians?
Look, libertarians got told by you guys that the 2006 Congress would fix things up. We were skeptical, and when we pointed out unhappily that they were starting out the session with pork and such, we were told to relax and the stuff about the war and human rights was coming Real Soon Now. Then, you guys started getting all pissy when the Blue Congress showed only half-hearted interest in such things, and y’all went on about how we were single-issue fringe people and the Sacred Party owed nothing to us.
So yeah. Team Blue starts out with little or no slack from libertarians. Encouraging news will be looked at hopefully, but suspiciously, and discouraging news or silence very harshly. Don’t like it? Too bad. Nobody’s forcing you to read the blogs of political outliers who laugh at your attempts to shame us, of all assinine things, into being positive about your politicians.
Comment by Picador —
November 10, 2008 @ 1:36 pm
Hesiod: I don’t know where you got the idea that I’m a “libertarian”, except that I’m making a comment on this blog. In any case, I’m not a “libertarian” in the sense in which that word is typically used. “Socialist” would have been a closer guess, if you had to choose a label. “1970s-style Democrat” would be even closer.
All I want is a US President with a platform to the left of Richard Nixon’s. We haven’t had one of those since Jimmy Carter, and Obama’s stated positions certainly give us every reason to believe we’ll still be waiting for a long time.
Comment by Eric the .5b —
November 10, 2008 @ 2:31 pm
I think “civil libertarians”, to include Picador here, will simply not be gratified until and unless Obama actually does promote respect for civil liberties and human rights. Only partisans get thrilled enough about suggestions of a vague, possible plan to lash out at any skeptics.
Comment by Mithras —
November 10, 2008 @ 2:45 pm
Things would have been great if we only nominated Hillary.
Comment by Mithras —
November 10, 2008 @ 3:33 pm
Just to clarify Hesiod’s summary of the AP story on Gitmo, it says that some detainees will be released to their home countries (not clear if they’ll be imprisoned and tortured there, or feted as heroes, but anyway they’ll be off our hands), some will get normal federal criminal trials, and the rest will go into this hybrid system with fewer rights. The reason for that is the evidence against them is probably inadmissible in a normal court – e.g., hearsay not covered by an exception or testimony acquired by torture. As a partisan liberal Dem, I’m curious what the libertarians on here think Obama should do about the third group of Gitmo detainees. If some lesser level of fair trial rights okay, or should they either get a normal trial or get released? What if no country will take any of the ones we want to release?
Comment by Thoreau —
November 10, 2008 @ 3:39 pm
Try them in court with whatever reliable evidence we have. If there is not enough reliable evidence to obtain a conviction, and if no other country will take them, then they can be released into the US to live their lives, just like we did with OJ Simpson.
You may think that’s an unacceptable security risk, but (1) I’m not convinced that a person who confessed under torture is indeed a terrorist, (2) even if he is, he’s been in the system for a long time, a lot of his contacts are probably no longer useful, and (3) we release lots of other men whom we suspect are dangerous but can’t prove guilty beyond a reasonable doubt. And on point (3), while I’m not exactly a fan of unchecked surveillance, I suspect that law enforcement already has ways of keeping an eye on people who were probably guilty but got released anyway. Call me crazy, but I doubt the FBI just stops paying attention to, say, a suspected Mafia associate who gets acquitted. So release them if acquitted in a court of law, but investigate any reasonable suspicions in a manner consistent with law.
That’s all I want: The application of law.
Comment by Eric the .5b —
November 10, 2008 @ 3:45 pm
As an American, I’m horrified and disgusted that it’s not even a week after the election of Mr. Hope and Change, and it sounds like partisans like you are gearing up to spin the whole torture angle as a weirdo-fringe concern.
The “libertarian” answer, the answer people like you should be giving just as quickly, is “Fuck no, every single one of them should either get released or get a real trial – and if the evidence is inadmissible, then it sucks to be the prosecutor!”
That’s a separate issue and a real problem; however, I don’t see why you seem to think anyone not immediately jumping on board with your Team’s plan should immediately be able to produce an alternative plan on every detail.
As a point of fact, of the detainees that the Bushies deigned to release, have any of them not been able to find an accepting country?
Comment by Mithras —
November 10, 2008 @ 4:27 pm
Yeah, the Uighurs. China won’t take them back.
I’m not trying to make you come up with a detailed plan off the cuff. The third group of prisoners probably includes some seriously dangerous people. But the evidence against them is also probably inadmissible, mainly testimony or confessions obtained by coercion. The ACLU’s position is the same as yours – give them a court martial or a federal criminal trial, and if you can’t because the evidence is tossed, tough. That probably means more dead Americans.
Either way – if we release them back to attack U.S. forces or if we curtail their trial rights – it will not be an easy call. People from across the political spectrum have to agree on a course of action, and own the consequences.
Just another instance of how Bush has screwed us all.
Comment by Thoreau —
November 10, 2008 @ 4:53 pm
Wow, bedwetter rhetoric from an apparent Obama supporter.
Comment by Eric the .5b —
November 10, 2008 @ 4:54 pm
Good point. I have to go with the federal court order – release them into the US and let them move freely. As Thoreau says, that doesn’t prevent the FBI from watching them.
Bluntly, the policy of preventing the use of inadmissible evidence in regular US criminal courts leads to dead Americans, to. It also helps to reduce steamrolling of the innocent. That third group is just as likely to include innocent people who were tortured as actual dangerous terrorists – if not more of them, giving the sloppiness of the whole process.
I mean, really, if the dominant concern is reduce theoretical danger to US forces, then the best course of action is simply execute every detainee. After all, even the innocent folks have a Hell of a good reason to be interested in terrorism, now. However, if we actually give a damn about what this country is supposed to be about, and if we care about the rights of human beings, that can’t be even a major concern. The concern has to be due process and human rights.
Where do you stand on that?
Comment by Mithras —
November 10, 2008 @ 6:32 pm
Yeah, for a whole host of reasons, starting with doing justice, I think we need to give them all trials like we gave Omar Abdel-Rahman, Sayyid Noasir and Ramzi Yousef and friends for bombing the WTC in ‘93. We managed to keep intelligence sources secret in those trials by letting the judge do an in-camera review of the evidence and deciding whether it should be given to the defense in redacted form. That was aided by the fact that they were thoroughbred criminal investigations from the get-go. Here, I just don’t know the state of the evidence, which is why you have a trial, right? It’s so fucked up.
For those who are acquitted, I am not sure what we do if their home countries won’t take them back, or if they want them back just to torture and execute them. Release them into the mainland U.S.? That’s plausible with the Uighurs because it’s clear they didn’t do anything, which is a different standard than being found not guilty. Also, there are ethnic Uighurs in the U.S. who will take them in. How about people like Khalid Sheikh Mohammed?
Also, these guys now know a lot more than they knew when they were captured. When you interrogate someone, it’s a two-way exchange of information. From the questions we’ve asked, you could figure out what we already know and how we found it out. They’re valuable intelligence assets whether they themselves are innocent or not. If we release them, and they’re not immediately executed by their home countries, they’ll be interrogated either by terrorists or foreign intelligence services in order to figure out new and interesting ways to attack us. If they’re so inclined to be terrorists now, as you point out, they’ll have lots of opportunities.
I really want both Republicans and Democrats to sign off on whatever trial plan they come up with, and live with the consequences, just as we do in criminal trials, as you point out. But I am not confident that the Republicans will restrain themselves. They’ll seize on any fair trial as throwing U.S. lives away, accusing Obama of aiding terrorists. (You know he’s secretly a Muslim, right?) Whether the Democrats then have the fortitude to move forward without the Republicans, knowing that they’ll likely get mauled in the 2010 midterms, I don’t know. I hope so.
Comment by Thoreau —
November 10, 2008 @ 6:42 pm
Ah, so the standard for whether a person should be free to go about his life must be higher than “reasonable doubt about guilt”? Fascinating! Do tell more!
First, you forgot to add that the Constitution is not a suicide pact. It’s a necessary propaganda phrase for anybody who wishes to make apologize for the ruling party.
Second, I have just enough confidence in our justice system to think that they’ll find a lawful way to convict an obviously guilty person like KSM. Indeed, given the frightening nature of the accusations and unsympathetic nature of the accused, I don’t think that the problem facing us will be finding a jury willing to convict. Quite the opposite, in fact.
Too dangerous to release, in other words. The very fact that they were interrogated means that they can no longer be free men. Fascinating!
Ah, so how a suspect is treated in a system of justice should depend first and foremost on how it might affect the electoral prospects of the officials overseeing the process. Fascinating!
Mithras, if you are an Obama supporter, do him a favor and stop talking about this. You’re just making your team look bad.
Comment by Eric the .5b —
November 10, 2008 @ 6:48 pm
There’s no standard by which to continue to hold the acquitted prisoner. Sending them to be executed is out.
Again, it’s not a case of saying, “Welcome to America, pleeeeease don’t commit wanton acts of terrorism, OK?” The FBI can take some agents off of infiltrating peace protesters and have them monitor any acquitted detainees who they suspect might be a thread.
These might not be the easiest, most comfortable answers, but it’s years past the time of agonizing over whether we can afford to recognize the human rights of these prisoners.
Comment by Eric the .5b —
November 10, 2008 @ 6:49 pm
That should be, “who they suspect might be a threat.”
Comment by Thoreau —
November 10, 2008 @ 6:53 pm
Be careful about releasing them, Eric. You might reap what you sew.
(I see the correction, and I’m making the joke reply anyway.)
Comment by Eric the .5b —
November 10, 2008 @ 6:56 pm
Thoreau, I think he wants to do the right things, but he’s struck by the fear of the potential costs, particularly to Team Blue.
Not being a partisan, I can’t really sympathize with that concern, as it does absolutely no good from my POV for President Obama to get re-elected if he doesn’t act on torture/detention issues and the war. However, I still think at least part of his heart is in the right place.
Comment by Eric the .5b —
November 10, 2008 @ 6:58 pm
Ooof, Thoreau.
Comment by Mithras —
November 10, 2008 @ 6:58 pm
Thoreau, I’m just not going to respond to abuse. If you don’t want to talk about the political realities of what is after all a political decision, then don’t. If you think those realities are beside the point, good for you. That’s why you don’t have the responsibility to make these kinds of decisions. Please note that I am trying to get past these problems so that we can give people fair trials and get innocent people released. Not acknowledging that some other people are going to oppose it is an excellent way to fail, don’t you think?
Eric- Assume it goes that way, and someone is acquitted who many people think would have been convicted if the evidence that got tossed had been admitted. The prisoner is then released into the American mainland, under surveillance. Don’t you think the last thing that FBI team is going to do is arrest whoever ends up assassinating the former prisoner?
Comment by Thoreau —
November 10, 2008 @ 7:05 pm
Yes. But it also strikes me that you’re setting up the objections and apologies already. You’re hinting these guys are too dangerous to release after interrogation, that the political cost of releasing them will be steep, etc.
I’ve already laid out a solution: If there are people who are likely a threat to our security but their guilt cannot be established beyond a reasonable doubt with lawfully obtained evidence, then the FBI should investigate any and all reasonable suspicions using all lawful tools at their disposal. Indeed, this is a good argument for setting them free in the US: There are FBI field offices in the US. Outside the US? Not so much.
Moreover, releasing them inside the US after a lawful acquittal in a court of law also keeps them out of the reach of a foreign intelligence service.
Finally, as to the political costs? The Constitution is no more a popularity contest than it is a suicide pact.
Comment by Eric the .5b —
November 10, 2008 @ 7:12 pm
Mithras, you’re making the arguments and pressing the apparent point of “we can’t actually get away with acknowledging their rights”, just saying.
The detainees can be released in anonymity, given new identities ala the witness protection program. Alternately, they can be given police and FBI protection, which can naturally be combined with surveillance. Whether the FBI wants to protect an individual or not does not matter. If they don’t do their job, we need to pursue punishment of the shirkers involved.
Comment by Mithras —
November 10, 2008 @ 7:14 pm
If I’m lobbying my member of Congress to do the right thing, I want to be able to say with a straight face that I have thought through the consequences of a proposed course of action and still think it’s the right thing to do, and there are no less dangerous courses of action that could produce a good outcome.
Comment by Thoreau —
November 10, 2008 @ 7:22 pm
What Eric said about witness protection. Plus, it will make it harder for foreign intelligence services and terrorist groups to find the guy being protected.
Mithras, if this is all just a thought experiment, I apologize. I just hope that it doesn’t morph from thought experiment to excuse in the next year.
Comment by Nell —
November 10, 2008 @ 10:27 pm
@Mithras:
The first step to minimizing the negative political impact of doing the right thing is to get off the defensive. The new administration can start by being straight with the American people as no one in the previous regime would about who the Guantanamo prisoners are: how few of those remaining were “taken from the battlefield” or have any basis for being held at all.
That makes the scope of the problem much more manageable and reduces the fears of all but the permanently paranoid 25-per-centers (who’d object to any outcome except mass executions anyway).
Maintaining the fiction that any but a handful of the prisoners ever posed any threat to Americans perpetuates the political resistance to fair treatment for those remaining.
On January 20, I expect to hear President Obama publicly recommit this country to the provisions of the Geneva Conventions. I expect the cleanup of Bagram and any other U.S. prison in Afghanistan to begin that day.
Comment by Gene Callahan —
November 11, 2008 @ 9:48 am
“Actually, it’s more like missing the forest for the oddly shaped cytoskeleton they’re complaining about in a small sub-cluster of cells on an individual tree in that forest.”
Yeah, yeah, Hal, the fact that Obama’s first appointment was a rabidly pro-war Democrat is just a itsy-bitsy wittle cytoskeleton on one wittle tree in the giant forest of CHANGE and HOPE.
Comment by Gene Callahan —
November 11, 2008 @ 9:56 am
“If you don’t want to talk about the political realities of what is after all a political decision, then don’t. If you think those realities are beside the point, good for you. That’s why you don’t have the responsibility to make these kinds of decisions.”
Yes, but Mithras, a system that cannot release innocent people simply because once it grabs them they are too dangerous to release is corrupt beyond redemption. Anyone who is able to gain the “responsibility” (read “freedom from all personal responsibility”) to make these decisions has already shown themselves to be too corrupt for polite company.
Supporting the slightly less vicious concentration camp commandant is not really a solution.
Comment by dhex —
November 11, 2008 @ 10:59 am
On January 20, I expect to hear President Obama publicly recommit this country to the provisions of the Geneva Conventions. I expect the cleanup of Bagram and any other U.S. prison in Afghanistan to begin that day.
whoa. i’d hate to be your liver.
Comment by Donald Johnson —
November 11, 2008 @ 12:07 pm
“whoa. i’d hate to be your liver. ”
Very funny line, but Nell doesn’t deserve it. I think she meant “expect” in the sense of “He damn well better do this”.
OTOH, I think you could probably find some Obama voters who do deserve that snark.
Comment by Thoreau —
November 11, 2008 @ 1:05 pm
Yeah, I like Nell, and I think she’ll respond quite realistically and honestly to whatever happens on Jan. 20.
Comment by dhex —
November 11, 2008 @ 2:13 pm
no i mean i’d be drinking a lot to numb the pain if i had that many expectations wrapped up in that particular package.
no snark intended.
Comment by lunchstealer —
November 11, 2008 @ 6:56 pm
dhex, to be fair, my liver’s already taken a massive beating from just trying to live through the Bush administration. No amount of Obama disappointment is going to hurt me now.
Comment by VikingMoose —
November 15, 2008 @ 12:04 pm
what the pilferer of the midday meal said.
but the TEAM BLUE apologists will be there, front and center, explaining to us why their abuses are okay.
lather. rinse. repeat. barf.