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The Sounds of Silence and Equivocation Obama and Torture

Obama and Torture

by LILIANA SEGURA

As endorsements poured in at the end of January for Barack Obama to become the next Democratic president of the United States, one in particular stood out: a call of support from a group of attorneys who have been defending Guantanamo detainees pro bono and who call themselves "Habeas Lawyers for Obama."

"Some politicians are all talk and no action," read their written statement, which they posted online. "But we know from firsthand experience that Sen. Obama has demonstrated extraordinary leadership on this critical and controversial issue. When others stood back, Sen. Obama helped lead the fight in the Senate against the administration’s efforts in the fall of 2006 … and when we were walking the halls of the Capitol trying to win over enough senators to beat back the administration’s bill, Sen. Obama made his key staffers and even his offices available to help us."

It was a reference to the highly fraught passage of the Military Commissions Act of 2006, which, among other things, gutted the centuries-old right of habeas corpus and gave the president the power to define what qualifies as torture. The law is a devastating assault on due process, and Obama was an outspoken critic; in a speech delivered on the Senate floor, Obama rebuked the Bush administration for its blatant and shortsighted maneuvering to get the legislation passed before the midterm elections:

"I may have only been in this body for a short while, but I am not naive to the political considerations that go along with many of the decisions we make here," he said. "I realize that soon we will adjourn for the fall and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we (the Democrats) will be criticized as caring more about the rights of terrorists than the protection of Americans."

"The problem with this bill is not that it’s too tough on terrorists," Obama said. "The problem with this bill is that it’s sloppy. And the reason it’s sloppy is because we rushed it to serve political purposes instead of taking the time to do the job right."

Pleading for support of a co-sponsored amendment that would have given the law a five-year expiration date, Obama said: "At bare minimum, I hope we can at least pass this provision, so that cooler heads can prevail after the silly season of politics is over." In the end, the amendment failed, and Obama voted against the bill. (Whether Obama would have voted for a five-year suspension of habeas corpus is not clear.)

Now, with his election campaign in full swing, Obama has positioned himself as just that: a level-headed candidate who can transcend political pettiness and bring people together in order to get things done. To his credit, he has promised he will restore habeas corpus and declares that it is "never OK" to torture. He has called for closing Guantanamo (all the leading candidates have, in fact, with the exception of the recently departed Mitt Romney, who would have famously "doubled" it). For anyone opposed to the Bush administration’s stampede on human rights, such promises are reassuring. But they are also a sad indication how dismally low our political standards have become. Opposition to torture is not a brave stance. You’re supposed to be against it.

The habeas attorneys’ support is a significant endorsement of a candidate who has often invoked his expertise in constitutional law in criticizing the abusive behavior of the Bush administration. But given Obama’s emphasis on — and history of — reaching across the aisle in order to make compromises in the name of change, a dose of skepticism is in order. Whoever inherits the so-called War on Terror must be ready for an uncompromising confrontation of its most grievous excesses. Beyond his stance on habeas corpus and torture, in many ways Obama has been as tempered in his rhetoric against the War on Terror as he has been cautious in discussing how he will address the U.S. occupation of Iraq. And his speeches before various audiences over the past year have made it clear that, despite his vote against invading Iraq, he is capable of being nearly as hawkish as Hillary Clinton.

Closing Gitmo

When Clinton called, in April of last year at a hearing of the Senate Armed Services Committee, for closing Guantanamo, she based her opinion in large part on statements by Secretary of Defense Robert Gates and Secretary of State Condoleezza Rice, who had suggested that the prison was no longer an effective tool in the War on Terror. "Rather than keeping us more secure, keeping Guantanamo open is harming our national interests," she said. "It compromises our long-term military and strategic interests, and it impairs our standing overseas." Clinton concluded, vaguely, that "we should address any security issues on what to do with the remaining detainees, and then close it once and for all." "There is a lot of land in this country that the federal government owns," she added. "There is certainly no shortage of capacity to build a special detention or prison or to use one of the maximum security facilities that already exist."

A few months later, at the Yearly Kos convention in Chicago, Hillary was asked when she would rescind the Military Commissions Act and when "can we expect Guantanamo to be closed." "We’re going to try to reinstate habeas corpus and reform the military tribunals/commissions procedures in the next few months," she said, citing the difficulty of passing such legislation. "We should start getting out," she said of Guantanamo. "If we don’t get changes in the military commissions act and the reinstatement of habeas corpus, if we’re not on the road to closing Guantanamo, when I’m president, I will start doing both those things."

There’s something that reeks familiar about this rhetoric, an apparent refusal to say, in no uncertain terms, that unlawful detention is wrong and that addressing it is a major political priority. Perhaps that’s one reason the Habeas Lawyers included a not-so-subtle jab at Hillary Clinton: "The administration’s attack on habeas corpus rights is dangerous and wrong. America needs a president who will not triangulate this issue."

But what about Obama? Has he made it clear what he would do with the prisoners at Guantanamo? In his speech on the Senate floor, Obama said, "I’ve heard … the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that." Expressing concern over the innocent men being held in legal limbo — "We’ve already had reports … saying that many of the detainees at Guantanamo shouldn’t have been there" — and invoking the case of Maher Arar, "the Canadian man … detained in New York, sent to Syria, and tortured, only to find out later that it was all a case of mistaken identity" — Obama stressed the need to be able to separate the innocent from the guilty. The problem with the commissions, he said "is that the structure of the military proceedings has been poorly thought through."

But for years, critics of the military commissions have not limited their concerns to the way they’ve been "thought through." When the Bush administration established its system of military tribunals following 9/11, civil rights attorneys balked, arguing that federal courts are an appropriate venue for prosecuting terrorism cases. In fact, as the New York Times reported in 2004, there were arguments even within the administration itself about the tribunals. One year after the arrival of detainees at Gitmo, with "no trials yet in sight":

"… some officials at the highest levels of the Bush administration began privately venting their frustration about both the slow pace of the Pentagon’s new courts and the soundness of their rules. Attorney General John Ashcroft was especially vocal.

"’Timothy McVeigh was one of the worst killers in U.S. history,’" Mr. Ashcroft said at one meeting of senior officials, according to two of those present. "’But at least we had fair procedures for him.’"

Or as one colonel (who now, bizarrely, is a commissions judge) wrote at the time: "Even a good military tribunal is a bad idea. The existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends."

The question of what to do with the detainees or their "scary friends" goes to the heart of the problem of an endless and (deliberately) ill-defined "war on terror." By agreeing that a military trial is the right place to try such defendants, Obama has given credence to one of its most dangerous premises: that the "battleground" spans across borders, giving the U.S. military ultimate latitude in prosecuting its captives. "The threats we face at the dawn of the 21st century can no longer be contained by borders and boundaries," Obama said in a speech last April. And in a separate speech a few months later, he said, "Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists." But can prosecutions really be tried transparently in a court run by the same force that detained, interrogated and, in many cases, tortured the defendant?

The unprecedented nature of the Bush administration’s consolidation of power in the War on Terror makes it hard to speculate as to what a new administration would do to cede these powers. Whatever clues exist are likely to come from the advisors who surround them. Although Hillary’s are more in step with a belligerent foreign policy, it’s not news that Obama has surrounded himself largely with her husband’s former advisors. (The Washington Post even ran a story last January that featured former Clintonites wringing their hands over their dueling loyalties.) Among them is former Clinton National Security Advisor Anthony Lake, who, as the journalist Allan Nairn recently reminded viewers of Democracy Now!, "was the main force behind the U.S. invasion of Haiti in the mid-Clinton years." Lake is on the advisory board of the Partnership for a Secure America ("dedicated to recreating the bipartisan center in American national security and foreign policy"), along with another Obama backer, Zbigniew Brzezinski. Brzeninski, who was National Security Adviser to Jimmy Carter, has been an outspoken critic of the War on Terror, everywhere from "The Daily Show" to Der Spiegel. But he also was one of the most aggressively vocal supporters of the bombing of Yugoslavia. ("I believe that the mass media ought to be more patient," he told Jim Lehrer as the air strikes continued in April 1999. " … It seems to me that leadership, political leadership, requires setting the tone and setting the direction, and not following public opinion polls.") Another advisor in Obama’s camp, Sarah Sewall, penned the introduction to the new counterinsurgency handbook written by Gen. David Petraeus. "If anyone can save Iraq, it’s David H. Petraeus," she wrote, not-so prophetically in the Washington Post last winter. (Or as one Vietnam major famously put it, "It became necessary to destroy the village in order to save it.")

Obama has an army of advisers, of course, with varying histories. But his continued funding of the war in Iraq, his hawkish lines on Pakistan — which he has called "the right battlefield … in the war on terrorism" — and his aggressive rhetoric over the past year (before certain audiences) have provided a chilling glimpse of what isn’t "off the table" when it comes to his view of U.S. military power.

In April of 2007, Obama gave a speech in Chicago at the Chicago Council on Global Affairs in which he outlined five ways he would lead if he were elected to the White House. Restoring habeas corpus was not among them. Neither was eradicating torture in the War on Terror. Neither, for that matter, was closing Guantanamo. To be fair, this does not mean he wouldn’t do these things. But his argument rested on a sort of benevolent militarism and an expansion of U.S. involvement across the world — as Noam Chomsky called it, "the new military humanism." For a candidate whose defining refrains are "hope" and "change," Obama echoes the legacies of Democratic presidents, from Carter to Clinton, whose administrations shaped conventional doctrines of Democratic foreign policy.

"There are five ways America will begin to lead again when I’m president," Obama said. The first way was by "building the first truly 21st century military … and showing wisdom in how we deploy it." Such a military would "stay on the offense, from Djibouti to Kandahar." "No president should ever hesitate to use force — unilaterally if necessary — to protect ourselves and our vital interests …" Obama said. "But when we use force in situations other than self-defense, we should make every effort to garner the clear support and participation of others — the kind of burden-sharing and support President George H.W. Bush mustered before he launched Operation Desert Storm." He may have been making a point about diplomacy, but Obama’s invocation of the 1991 Gulf War — which leveled Iraq’s civilian infrastructure and began the road to the occupation — suggests that it’s OK to destroy a country so long as you can cajole some other nations into supporting it.

In another speech — titled "A War We Need to Win" — Obama did speak out forcibly against torture and promised to close Guantanamo. But he also spoke of the "need to integrate all aspects of American might, calling for "a broader set of capabilities, as outlined in the Army and Marine Corps’s new counter-insurgency manual" — the one written by Gen. Petraeus. "To succeed, we must improve our civilian capacity. The finest military in the world," he said, nevertheless "cannot counter insurgent and terrorist threats without civilian counterparts who can carry out economic and political reconstruction missions — sometimes in dangerous places." Obama pledged to "strengthen these civilian capacities, recruiting our best and brightest" and "increase both the numbers and capabilities of our diplomats, development experts, and other civilians who can work alongside our military."

Sounds a lot like those military contractors who have been in the news since Blackwater’s killing of 17 Iraqi civilians in Baghdad’s Nisour Square last September. To his credit, Obama was one of the few senators willing to address the issue before the massacre, but, as his speech suggests, his legislation sought to integrate mercenary forces into the war machine, rather than shut them down. It is an approach that has actually been endorsed by Blackwater and other mercenary firms.

The domestic war on terror

On the home front, one disquieting glimpse of what Obama’s smarter, more sophisticated version of the War on Terror might look like is his position on the Violent Radicalization and Homegrown Terrorism Prevention Act. Referred to by some as a "thought crimes" law, the bill passed the House by a vote of 400 to six last October. As Scott Thill wrote for AlterNet recently, the law:

" … defines ‘homegrown terrorism’ and ‘violent radicalization’ nebulously; the former is merely ‘the use, planned use or threatened use of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives,’ while the latter means "the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious or social change." Ideologically based violence, in turn, is defined as "the use, planned use or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious or social beliefs."

Sounds fair enough, until you start crunching the language and come to the realization that practically anyone, on any given day, could fit the description."

Like the War on Terror, the Violent Radicalization and Homegrown Terrorism Prevention Act is purposefully, impossibly vague.

Yet, in December, members of Obama’s official listserv received a message from the candidate that read:

"The American people understand that new threats require flexible responses to keep them safe. They also insist that our responses to threats respect the Constitution and do not violate the basic tenets of our democracy. The Violent Radicalization and Homegrown Terrorism Prevention Act includes provisions prohibiting the Department of Homeland Security’s efforts from violating civil rights and civil liberties of U.S. citizens and lawful permanent residents."

Obama’s campaign reps have since backpedaled, telling a reporter for the Indypendent (which helped break the story) that the senator "has not taken a position" on the legislation. "Should the bill be considered by the Homeland Security Committee, he will carefully evaluate it, as he does with all pieces of legislation." Obama has been silent on the issue since. As a member of the Homeland Security Committee, he is in a position to exert his influence. As a presidential candidate, however, it is to be expected that he would scuttle such a politically risky responsibility.

Obama’s equivocation on a no-brainer like the Violent Radicalization and Homegrown Terrorism Prevention Act is an unnerving illustration of precisely what his opponents have taken him to task for: an unwillingness to take a specific and uncomproming position when it counts. His opposition to the war on Iraq and his defense of habeas corpus are important. But, like his vote to reauthorize an amended Patriot Act, Obama has shown himself too willing to reform rather than fight against some of the worst policies of the Bush administration.

Liliana Sequra writes for Alternet, where this column originally appeared.