"I came here to drink milk and kick ass. And I've just finished my milk." - Moss, The IT Crowd

Wednesday, March 9, 2011

Promises, Promises

More and more, I regret voting for Barack Obama and making a campaign contribution to him in the last Democratic presidential primary. During his presidential campaign, Obama talked up a meaningful commitment to civil liberties, human rights, and transparency in government. His campaign stance as a defender of of these core principles has been utterly belied by his actions since taking office. The main changes I've seen under Obama have been (1) the passage of healthcare reform, which was turned into a giant giveaway for the insurance companies; and (2) the repeal of "don't ask, don't tell" - laudable, but hardly the same as actively pursuing equal rights for LGBT individuals in all walks of life. [Edited to add: I had my civil liberties hat on and forgot all about bailing out the crooks on Wall Street! Yup, he did some of that too. Although I guess that doesn't really constitute a change.] Attempting to enumerate Obama's broken promises here would take so long as to undermine my goal of posting some original content each day, so I'm going to confine myself to one broken promise today: Obama's failure to shut down the United States' disgraceful extralegal prison in Guantanamo.

On March 7, 2011, Obama signed an executive order authorizing a Periodic Review Board (PRB) process to be coordinated by the Secretary of Defense. The executive order allows up to a year from the date of the order for the commencement of each prisoner's initial review. (Note: the document refers to the individuals imprisoned at Guantanamo as "detainees." I choose to refer to them as "prisoners," as I believe that to be a more accurate use of the English language. The term "detainee" carries connotations of a temporary, transitory type of custodial detention. When someone has been imprisoned for the better part of a decade without trial, there's nothing temporary or transitory about it.) A full review and hearing is required to be conducted only on a triennial basis, but a "file review" shall be conducted every six months. The standard for continued detention is "if it is necessary to protect against a significant threat to the security of the United States."

For the PRB, the order prescribes that the prisoner shall be assisted by a government-provided representative with sufficient security clearance to access the evidence provided by the Secretary of Defense and other relevant government agencies, and may also be assisted by private counsel. This sounds pretty good until you look at Section 3 (a) (5), which states, "In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. … A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process." The only official tasked with assisting the PRB in the preparation of these substitutes or summaries is the Director of National Intelligence, although other executive departments and agencies must assist in providing the information required. No process for validating the sufficiency, accuracy, or thoroughness of these substitutes or summaries, or for determining whether the concealment of such evidence is in fact necessary to protect national security, is laid out in the executive order. Basically, the affected prisoners and the public (whose tax dollars are paying for this travesty) are supposed to take it on faith that our unelected government officials would never spin or conceal evidence in order to secure a review board finding that makes them smell like roses for keeping people locked up without trial for 9 years and counting.

The only oversight provided to the PRB comes from a Review Committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. Quis custodiet ipsos custodes? Every member of the Review Committee is a member of the executive branch of government: the same branch of government responsible for detaining these prisoners in the first place. The only real remedy this executive order leaves for prisoners at Guantanamo is as follows: "Detainees at Guantanamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention." Unfortunately, what we have seen in practice is that our circuit courts are often all too willing to deny habeas to Guantanamo prisoners upon even the flimsiest evidence.

Discretionary exercise of indefinite administrative detention on the grounds of "national security," by a single branch of government which then sets up an internal review system (essentially, show trials) with zero outside oversight and which explicitly prohibits prisoners from reviewing evidence against them when that same branch of government judges in its sole discretion that said evidence is a matter of "national security," should frighten everyone. This is anathema to anyone who cares about freedom and the rule of law - that is, the quaint notion that the law is a respecter of principles rather than persons.

I used to think Obama cared about these things too, but the evidence to the contrary is rapidly becoming irrefutable. If you give lip service to civil liberties and transparency when it's convenient, and all the while give your cabinet members free rein to continue pursuing the most corrosive police-state policies enacted over the last decade, you're going to look like a hypocrite. Because you are one.

[ETA: Good post by Glenn Greenwald on this topic this afternoon.]

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