Ambition Makes You Look Pretty Ugly...

Title lyrics from Radiohead's "Paranoid Android."

One of the most frustrating facets of any conversation with fervent opponents of President Obama is their unwillingness or inability to see that they are pretty much railing against an administration they were supporting just 8-plus months ago. Indeed, they never seem to argue against Obama as currently constituted, but instead against an apparition of a presidency that had no shot of ever materializing in the first place.

Just as the American left continues to huff the intoxicating fumes of a primary season long since past, the right continues to focus its ire on a fanciful combination of standard political rhetoric and old-fashioned scaremongering. Neither seems to understand that the Obama of the imagination, that master of oratory who would sweep us into an age of world peace and harmony and convert the United States into a vast Utopia, existed only in the minds of those who chose to believe it out of desperation and those that needed it as a large, slow-moving target at which to foist all angst and antagonism.

The reality is, as always, a lot more pedestrian. To the delight of the right, it seems that you don't need a real liberal Leviathan to stir the masses; a mirage works just as well. But for the left, the Inauguration hangover seems to linger. But, as Tom Engelhardt and David Swanson noted, it has been difficult to distinguish Obama's 8 months from a third Bush term. I also discussed some glaring similarities a month prior, but there are plenty more. To wit:

Obama's campaign continually called for a return to transparency in government. A return to the rule of law. Ad infintum. Ad nauseum. He called Bush's use of signing statements an "abuse." Yet, Obama has already committed such "abuses" several times during his presidency, drawing criticism from members of both parties. His defense is of course a familiar refrain: The statements "have been based on mainstream interpretations of the Constitution and echo reservations routinely expressed by presidents of both parties" and "he could disregard the negotiation instructions under his power to conduct foreign relations." In other words: "Screw off, Congress."

The really titillating part of that defense is the "routinely expressed" part. There are many things that have been done by previous presidents, but repetition does not exonerate. And lest we forget, that theorem goes against what seemed to constitute the only plank in his platform, namely a break from the past.

During the campaign, Obama also promised to curb government abuses regarding prisoners in the War on Amorphous Nouns. Despite all the handwringing from Cheney et al, there was never any danger of mass prosecutions for the torture of American prisoners at Guantanamo or elsewhere.

First, never in American history has a government leader been prosecuted for such crimes. Clowns like Jim Traficant can go down, but never for something that calls the whole system into question. Never for proxy wars in Latin America. Never for funneling arms to Islamic terrorists (when convenient). And, as we shall see, never for strapping live leads to someone's genitals. (And really, it's not difficult to agree with the thought that we'd have to do some real soul searching and research to determine whether that does indeed cross some line. Cause, you know, moral lines are hazy.)

This instance won't be any different. At most, we'll be offered up some sacrificial lambs/bad apples who'll be pardoned shortly thereafter. The left's fantasy of prosecutions of Cheney or Rumsfeld are never going to happen. But even in tossing a small sliver of acquiescence to opponents of US interrogation policy, Obama has effectively validated Bush policy.

Though there may be an investigation of sorts, Obama has declared that only those that went beyond the policies instituted by the Bush administration qualify for discipline. In other words, John Yoo's memos are the effective law. There will be no question as to the legality of that one-man legislation. So, while constantly proposing a radical shift from Bush-era policy in speeches, Obama validates and solidifies it in practice.

The same goes for dragnet surveillance, with the administration claiming that the federal government is immune from litigation because of Bush-era legislation. The illegality of its actions have no bearing here. Obama, like his predecessor, claims that by definition if the government does something, it is legal. Three cheers for change.

Returning to US detention policy, Obama seems to have discovered that Bush set him up quite nicely in that arena:

The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.

Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

It gets better:

But President Obama’s advisers are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.

The Justice Department said in a statement Wednesday night that “the administration would rely on authority already provided by Congress” under the use of force resolution. “The administration is not currently seeking additional authorization,” the statement said.

Contrary to that claim, this position is not a switch from Bush policy. Bush used that same legislation to justify almost every action he took. Indeed, he was prepared to use that same legislation to go to war in Iraq, until it became evident that a hastily-prepared October vote in an election year would be even more politically beneficial.

Here, the administration is hiding right out in the open. Far from a reversal of Bush policy, the Obama administration is effectively thanking Bush for giving it so much leeway in foreign policy, war-making and wholesale suspension of Constitutional clauses. I'm sure that change is here somewhere. Maybe I just don't know where to look.

How about health care? Surely such an avid socialist like Obama would scare the piss out of the insurance companies with his speech to Congress, right? Well, not so much:

Shares of U.S. health insurers climbed on Thursday after analysts saw no "game changers" from President Barack Obama's highly anticipated speech on health reform.

Following the speech, analysts predicted any changes to the system would be moderate, with Obama backing many initiatives put forth earlier this week by a leading Senate committee. The possibility a threatening public health plan would be enacted also now seemed doubtful, analysts said.

"There wasn't anything said that is drastically changing the outlook as to what might come out of Congress," said Steve Shubitz, an analyst with Edward Jones.

You read that correctly. After the speech, stocks of insurance companies rose. Despite of all the rhetoric and scaremongering, the investors took away from that speech pretty much what I did. Namely, that anything that comes out of a health care bill will actually be a boon for the insurance companies.

First and foremost being the individual mandate. Why wouldn't the insurance companies love that? Everyone has no choice but to pay them (go free market!), but any supposed government competition will never materialize. Those that can't afford the insurance will simply have their premiums paid to the private companies by the government. Somewhere, Ronald Reagan is wiping a tear from his eye with muted applause.


Related:

When You Were Here Before...Couldn't Look You in the Eye Aug 9, 2009
Conventional Folly August 20, 2008
What Orwell Didn't Know August 1, 2008

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Habeas Corpus: How Protecting a Written Guarantee Becomes 'Activism'

Last week's decision by the Supreme Court to uphold habeas corpus for Guantanamo Bay detainees has set off a predictable firestorm riddled with precarious assumptions and outright falsehoods. Coverage of the decision has given plenty of time to these presumptuous hypotheticals, but been lax in examining their shaky foundations.

The easiest tenet of the opposition's argument to put down is that which supports the Executive branch's ability of eliminate habeas corpus outright. The ability to challenge detention is not culled from context or some obscure jurisprudence facet of Constitutional law, it is guaranteed explicitly in Article 1, Section 9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

As the US is neither in a state of rebellion or invasion, there is no legal justification for suspension of the writ, and no amount of semantic two-step can work around the clear, succinct language of the founding document. Proponents of Bush's policy often point to Lincoln's suspension of habeas during the Civil War, but as that was a rebellion, it was supported by the Constitutional provision. That is not the case in this instance, and the example is clearly erroneous, though its veracity is rarely questioned despite its false pretense. The text of the Constitution could not possibly be any clearer on this point.

The only question then, was whether or not the rule of law applies in what is officially Cuban territory. But, despite Cuba's nominal dominion over Guantanamo, it is obvious that the US is in actual jurisdiction over the base. Even were it not so, the implication of allowing that line of reasoning to pass--that Guantanamo is completely insulated from Constitutional governance--is that the government could ship anyone, including citizens, to the base and be exempt from the law. It should remain without question that pockets of immunity would not have been endorsed by the writers of the Constitution.

All that is left is to examine the presumptive nature of the opposition to the ruling. John Yoo, that distinguished Constitution-phile, provides a nice bulleted rundown of the fallacies in today's Wall Street Journal.

Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

The whole idea of habeas corpus is to establish that the detainees were indeed fighting the US. Yoo, though, presumes that is the case even as he fights against the statute which would be used to establish such a presumption.

In fact, many detainees were not doing anything of the sort when captured. Many have been detained because they were rounded up and turned up by people wanting to profit off of the bounties promised by the US. Others were simply pointed out by others to settle old scores. This was commonplace in Iraq as well, as devoid of a centralized government stamping out sectarian conflict, neighbors sold out neighbors to settle old grudges. Many were simply picked up off the street. Whatever the case, stating categorically that every detainee was captured battling US forces is blatantly false.

Yoo also addresses German POWs during WWII, but again Nazi soldiers were captured on the battlefield and were uniformed members of an enemy force. At the end of the war, they were no longer POWs. The War on Terror is a different animal. By definition, it continues ad infinitum, thus allowing under the MCA indefinite detention of prisoners. Clearly the two cases are not parallel.

In his oped, Yoo returns to his favorite crutch of the President's position as Commander-in-Chief. But the title makes him the top general of the armed forces, and does not grant carte blanche to eliminate provisions of the Constitution outright. To fill a room with 5 lawyers who believed that was the founders' intent would be nearly impossible.

It is the continuing attempt to apply the rules of finite wars such as WWII or the Korean War to the interminable War on Terror that is the most frustrating. By constantly pointing to examples, however ill-applied, from those wars, people like Yoo continue to obfuscate the fact that the US is fighting against an idea--terrorism--and not a defined enemy. The same pretext cannot possibly be applied to both situations.

Predictably, Yoo refers to the Court's decision as yet another example of judicial activism, the sacred cow of the right when confronted with the frustration of its recurrent attempts to eliminate Constitutionally-guaranteed rights. Yoo pretends that the 5 justices in the majority somehow pulled habeas out of whole cloth, when in fact it is written clear as day in plain text. Activism, in this case, would be to declare that certain inconvenient phrases from the document can simply be whitewashed at will.

The debate over the decision invariably regresses to 'support' or 'don't support' the War on Terror, but that is a false argument. The decision made by the Court was not whether or not the US was allowed to detain dangerous individuals. The Court decided that the President, even with Congressional subservience, is not allowed to unilaterally declare the Constitution null and void as the mood suits him.



Related:

Tortured Logic, April 14
Trickle-Down Responsibility, May 9

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Tortured Logic

If there's one thing the War on Terror has made unambiguous, it's that ambiguity will continue to surround the actions of the United States and the Bush administration in its attempt to prevent further attacks upon the nation. Faced with preserving rights or preserving the ability of government to take those rights, Bush always sides with the latter, be it ever-growing surveillance powers or the use of torture in interrogations.

All too often, the administration is allowed to toss around misleading statements and outright falsehoods in the pursuit of those aims, and just as often cable news networks with 24 hours of space to fit questioning of the process fail miserably to that end. When the Attorney General was making up implausible scenarios in San Francisco, the news was centered on Barack Obama's inability to bowl. When the leader of the free world admitted that he knew and approved of violations of international and domestic law, the media wrapped itself in a blanket of despair over perceived elitism. From the poorest (relative term, of course) and least-established of the three candidates, no less.

What began years ago as "a few bad apples" participating in a sophomoric lapse in judgment has been fleshed out into full-fledged human rights violations under the umbrella of international and domestic statutes. And the media couldn't be less impressed.

As time has progressed from March of 2004, so has the overwhelming mountain of evidence pointing ever higher in the administration in search of the origins of the use of torture in US interrogation techniques. But, until Friday, there was nothing to link President Bush directly to the negotiations and planning. Those who thought such a revelation would portend some sort of culmination were sorely disappointed, as the country ignored the news with the same callous disregard in which Bush delivered it.

For the leader of a free nation to be admitting freely, without any hesitation or outwards sign of guilt, that he had full knowledge of his surrogates planning to break the law and be greeted with a shrug is nothing short of breathtaking.

First, it is important to emphasize that there is a definition of torture under US Code. It is a legal definition, not something which Bush or John Yoo get to manipulate with shifty words or maneuvering.

Sec. 2340. Definitions

As used in this chapter--
(1) "torture" means an act committed by a person acting under
the color of law specifically intended to inflict severe physical or
mental pain or suffering (other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical
control;
(2) "severe mental pain or suffering" means the prolonged
mental harm caused by or resulting from--
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
personality; and

(3) "United States" means the several States of the United
States, the District of Columbia, and the commonwealths,
territories, and possessions of the United States.

Waterboarding has been the most-discussed method of interrogation (though the administration admits to using it on only 3 prisoners), and despite the rhetorical side-stepping of Bush and his appointees, it clearly meets the criteria of "'servere mental pain or suffering' resulting from threat of imminent death." There is really no way being made to feel as though drowning does not constitute 'threat of death.'

Yet, the act is still presented as an unclear procedure which may or may not be wrong, although any discussion of the veracity of either position is typically centered on the personal feelings of those involved in the argument rather than an objective utilization of definitions. When asked if the US tortured prisoners, Bush assured us "the United States does not torture," but we have admissions that waterboarding was used and the clear-enough definition of 'torture' under US Code to compare it to. This isn't a matter of asking the participants if they think they did anything wrong. It's not a matter of semantics. All that is required is a faithful adherence to the English language.

But beyond waterboarding, those interrogation techniques--though not talked about--which are much more widely-used still meet the definition. Consider several of the commonly-used methods: deprivation of sleep, deprivation of senses, exposure to extreme temperatures, and electric shock. To contend that these techniques fail to meet the definition spelled out in the US Code strains credibility and illustrates a wanton disregard for objectivity.

The definition clearly defines torture as "causing mental harm through procedures calculated to disrupt profoundly the senses or the personality." The Geneva Conventions explicitly prohibit "violence to life and person," "outrages upon personal dignity," and "conditions exposing [prisoners] to contagion or infection." All of the previously-listed techniques meet one or more of those definitions.

So George Bush is free to say that the "United States does not torture," but it is equally fair for others to bring up the actual definition of the US Code he has sworn to uphold in claiming he's lying. It's not a matter of opinion whether or not these acts are torture. There are legal definitions, and they are all met.

The administration, of course, does all this under the umbrella of homeland security. You've gotta break a few eggs to stop all the terrorists attacks. This first requires the belief that a government that missed a massive attack spanning two presidencies is suddenly competent enough to act upon what some schmuck says in conditions designed precisely so he'll say anything to get out of them. But, that aside, this again begs the question: When did the Executive Branch become responsible for interpreting and re-writing the law?

All good intentions aside, if the laws need to be changed, get them changed. Through legislation, not back-room semantic mangling by a sycophant flunkie. As much as it pains me, I mostly think Bush is a somewhat pitiful, hopeless idealist. I don't believe him to be inherently evil. But one thing is clear, and that is that the United States has flouted international treaties it has promised to uphold--and expects other countries to uphold when detaining our soldiers--and its own code.

Bush often says that history will be the true judge of his presidency. Sadly for him, I think that's true, because we haven't reached the end of the line yet. For all its egregious acts and slaps in the face to representative democracy, this administration has proven time and again that something more scandalous always lurks just around the corner.

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