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Liberals in Congress and in the general public have allowed their blind devotion to Obama obscure their understanding of the dramatic parallels between this administration and the previous one. Obama’s high-minded idealistic rhetoric (which Bush also engaged in, it should be pointed out) may sound great to establishment liberals, but it masks the same contempt for the rule of law that was displayed so often in the Bush imperial presidency. Now, Obama’s contempt for the Constitution is on display for all to see, although many will not like what they see.
Nowhere is this contempt for the highest laws of the land clearer than in Obama’s complete refusal to protect basic due process rights for alleged terrorists and detainees in the “War on Terror.” Case in point: Obama’s commitment to illegally detain American citizens under the name of fighting terrorism (more on this in a bit).
Before getting into Obama’s most recent attacks on the Constitution, I should note that they are part of a larger historical pattern of contempt for basic civil liberties. Count among Obama’s previous transgressions: 1. The decision to refrain from prosecuting the Bush administration for its many violations of the law, including the NSA wiretaps scandal, the Guantanamo-enemy combatant fiasco, the systematic lying about the reasons for war in Iraq, and the willful skirting of the Geneva Conventions as seen in the Abu Ghraib scandal, among other deceptions; 2. The decision to continue using rendition, where terrorist suspects would be sent to third world dictatorships to be interrogated, coupled with the absurd promise that these governments would no longer torture detainees (as they did under Bush), because the new interrogations were in service of the noble and selfless Obama, unlike Bush, who was a bad, bad man; and 3. Obama’s expanded “War on Terror” as seen in the Afghan surge, which would have been protested endlessly if it occurred under the Bush administration.
The Los Angeles Times’ reporting in early 2009 perfectly symbolized the naiveté of liberal aspirations for the president, as the paper reported on Obama’s tortured promise (no pun intended) that the CIA would continue to use rendition, but that foreign interrogators simply wouldn’t torture anymore. Such a promise was outlandish on the face of it, since the whole point behind rendition is to outsource torture to allied governments which are better able to hide their use of torture in interrogations (this was the lesson learned at Abu Ghraib, Guantanamo, and Bagram, where U.S. interrogators were eventually implicated in coercive interrogations and torture).
As the LA Times optimistically reported at the time of Obama’s inauguration: “The CIA’s secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba…Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States. Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism… for taking suspected terrorists off the street.” The LA Times continued: “Obama created a task force to reexamine renditions to make sure that they ‘do not result in the transfer of individuals to other nations to face torture,’ or otherwise circumvent human rights laws and treaties. The CIA has long maintained that it does not turn prisoners over to other countries without first obtaining assurances that the detainees will not be mistreated.” Such naiveté was no doubt embraced by Obama supporters who wanted to believe that Obama could never engage in the kind of torture of detainees that so regularly characterized the actions of the Bush administration.
Now Obama appears to be ready to strengthen his contempt for the rule of law via his expansion of the enemy combatant system, while slyly refusing to refer to those detained as “enemy combatants.” Much was made of Obama’s initial attempts (in 2009) to shut down Guantanamo and send detainees there to U.S. civilian courts, where they would be granted basic due process rights. That plan was shut down by Democrats in Congress, which have long displayed their basic distaste for basic Constitutional and other legal protections for “terrorist suspects.” Obama kowtowed to Congressional criminality in 2009, and is set to do it again this year. As the New York Times recently reported, Obama has now abandoned his promise to veto the “military authorization bill” being considered in Congress, which threatens to extend denial of due process to American citizens who are suspected of terrorist activities. Let me repeat that in case you missed it: Obama has now gone on record as openly supportive of denying American citizens (not only non-citizens) basic due process rights such as the right to trial, trial by peers, and right to legal representation.
As the New York Times reports: “The administration had threatened to veto versions of the National Defense Authorization Act of 2012 passed by the House and the Senate, arguing that provisions would open the door for the military to perform policing functions inside the United States…But the bill includes a narrower provision, drafted by the Senate, authorizing the government to detain, without trial, suspected members of Al Qaeda or its allies — or those who ‘substantially supported’ them — bolstering the authorization it enacted a decade ago against the perpetrators of the Sept. 11 attacks…Another section would require officials to hold noncitizens suspected of being Qaeda operatives in military custody.”
Of course, the traditionally slavish U.S. media spared Americans the worst details of the new legislation. The Guardian reports that the new law potentially “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.” Neither of these details was acknowledged in the New York Times’ report on the National Defense Authorization Act, to the delight of the Obama administration.
It’s truly tragic and sad that this “debate” over circumvention of basic rights granted in the Constitution has to be replayed yet again in the United States. The Bush administration was rightly condemned for its complete contempt for the Constitution, but American liberals seem content to ignore these same transgressions when engaged in by Democrats.
For the record, there is nothing remotely controversial about the conclusion that denying citizens and non-citizens alike basic due process rights in civilian courts is illegal under national and international law. As the Supreme Court ruled in the 2004 case of Hamdan v. Rumsfeld, military tribunals for terrorist suspects clearly violate basic protections granted under the Geneva Conventions, which require that suspects be tried in “regularly constituted courts.” A regularly constituted court is widely understood to be the equivalent of a civilian court, conferring within it basic protections to confront accusers, benefit from a trial of one’s peers, and to be protected against hearsay, majority (rather than unanimous voting), and to confidential attorney-client privileges. All of these protections are circumvented in military tribunals, which afford a far lower level of basic protections to the accused. Such due process protections carry the force of domestic law, in light of the fact that the Geneva Conventions are U.S. ratified foreign treaties, and are protected under the Constitution’s “supremacy clause,” which places foreign treaties on par with national laws and the Constitution itself as the highest form of law in the land. The Supreme Court also found that the Geneva Conventions protections for non-citizens (to have access to a trial in a civilian court) were protected via the Uniform Military Code of Justice, which also incorporates basic Geneva Conventions protections.
The outlawing of the “enemy combatant” designation and the indefinite detainment of non-citizens was also reinforced in the Supreme Court’s 2004 Hamdi vs. Rumsfeld decision, which declared the Bush administration’s detainment of terrorist suspects at Guantanamo to be illegal and unconstitutional. The Constitution states explicitly in the 6th Amendment that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Critics will no doubt point out that the 6th Amendment refers to basic protections granted to those who are charged with crimes allegedly committed within (rather than outside) the United States. This criticism is irrelevant, however, with regard to the new legislation being considered in Congress, which is set to apply to American citizens and their (alleged) illegal activities committed on U.S. soil. Furthermore, the Constitution does not distinguish between citizens and non-citizens in the case of alleged crimes and due process rights, as addressed in the Fifth Amendment, which explicitly states that “no person [rather than no citizen]…shall be deprived of life, liberty, or property, without due process of law.” This provision essentially makes illegal and unconstitutional any attempts by presidents or congress to deny basic due process to citizens and non-citizens.
Obama’s lawless infringements on basic Constitutional principles are (fortunately) opposed by a strong majority of Americans, who still maintain a commitment to the rule of law. Polling on the denial of due process is in short supply, but what little evidence exists suggests strong rejection of the circumvention of the Constitution. A 2006 poll published by the Program on International Policy Attitudes, for example, uncovers the following findings:
– 73 percent of Americans believe terrorism “suspects should have the right to request and receive a hearing.”
– 66 percent think that the “home government and families [of detainees] should be informed of their capture and location.”
– 73 percent feel that detainees “treatment should be monitored by the Red Cross or another international organization” to ensure that they are treated humanely
– 75 percent (contrary to Obama’s reliance on rendition and torture) feel that detainees “should not be tortured,” while 57 percent think that detainees “should not be threatened with torture.”
– 63 percent agree that “the rules for treating someone who is being detained because they are suspected of terrorist activities should be the same for citizens and non-citizens.”
– 57 percent feel “the United States should not permit U.S. military and intelligence agencies to secretly send terrorism suspects to other countries that are known to use torture.”
– 78 percent believe that it would be “somewhat” or “very likely” that these suspects “were tortured even if officials [as Obama has done today] say they would not be.”
American majority sentiment is very clearly opposed to the Obama administration’s continuation of the illegal attacks on the Constitution and basic due process rights. We have an opportunity today to send a message to our members of Congress that denial of due process is unacceptable regardless of the party of the president. Simply because Congress decides to initiate illegal acts doesn’t mean that they are any less unconstitutional. Political elites may have no interest in this basic lesson, but that doesn’t mean that Americans have to accept such draconian, authoritarian arguments. I strongly urge all those committed to the rule of law to contact their legislators in the House and Senate and urge them strongly to vote no against the authorization of the 2012 National Defense Authorization Act.
To look up your members of Congress, see the following links:
For the House of Representatives: http://www.house.gov/representatives/find/
Anthony DiMaggio is the author of numerous books, including most recently The Rise of the Tea Party, and other works such as Crashing the Tea Party (2011); When Media Goes to War (2010); and Mass Media, Mass Propaganda (2008). He has taught American politics and International Relations in Political Science at a number of colleges and universities, and can be reached at: email@example.com