Maine Owl

Month in review: President Obama seeks to legalize black-hole detention and makes a bad turn on disclosure of photos showing American torture in Iraq


Rachel Maddow distinguished for making "prolonged detention" the top story on the day of the Obama speech on national security, May 21


Professor Jonathan Turley (May 22): "We're going to decide—for one thing, we're willing to give trials to people, unless we think they're going to win. And if we think they're going to win, we're going to deny them trials and we're just going to hold them indefinitely."

It's been a bad month for Terror War policies in the Obama administration. Decisions and statements by President Obama in May 2009 firmly have established his ownership of some of the worst aspects of Bush-era attacks on civil liberties. Furthermore, the president has attempted to maintain secrecy surrounding American use of torture and cruel, inhuman, and degrading treatment in its occupied lands. Here I post a brief review in order to mark this inauspicious month.

Indefinite arbitrary detention
In the major National Security speech on May 21, President Obama said he wants formally to codify US power to "hold individuals to keep them from carrying out an act of war." This would be at least as dangerous to human rights and civil liberties as any official action of the administration of George W. Bush.

This I find to be the most alarming and dangerous aspect of what the president is proposing--his desire to carve out a new kind of legal space where human beings may be held forever without being charged of committing any crime through an established process.

Though the president says "we will do so within a system that involves judicial and congressional oversight", it cannot be anything other than executive edict cloaked in secrecy and fraught with opportunity for abuse. The bottom line is that Obama wishes to have buy-in from all branches of government for indefinite detention of accused persons who would have no hope of release, even though there is no credible evidence they ever have committed a criminal act.

It looks to me like President Obama wants to take Bush's "misguided experiment" and guide it, not get rid of it. In fact it's telling that in all the criticism of the previous administration Obama does manage to spit out in the speech, he called the Bush detainee actions an "experiment" rather than a travesty.

Glenn Greenwald explained the emerging Obama tactic in matters concerning conflict of rights and justice with the National Security State:

Greenwald: The speech was fairly representative of what Obama typically does: effectively defend some important ideals in a uniquely persuasive way and advocating some policies that promote those ideals (closing Guantanamo, banning torture tactics, limiting the state secrets privilege) while committing to many which plainly violate them (indefinite preventive detention schemes, military commissions, denial of habeas rights to Bagram abductees, concealing torture evidence, blocking judicial review on secrecy grounds).

Even more telling is what the president left out of the May 21 speech. He was reluctant to cite specific aspects of international law on which the United States has run afoul. And he certainly does not explain how an executive-driven system possibly can be consistent with Article 9 of the Universal Declaration of Human Rights: "No one shall be subjected to arbitrary arrest, detention or exile."

Furthermore, the speech failed to mention the Bagram air base in Afghanistan or anything about the "black site" detention centers run by the CIA all around the world. As Glenn Greenwald wrote last month in a breathtaking post (cited here by Noam Chomsky),

Greenwald: Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

This policy of abduction into no-rights zones now embraced by Obama so offended Bush-appointed Judge John Bates that in March he handed down a ruling rejecting presidential authority to abduct and imprison people without due process.

Abu Ghraib torture photos
In another incredible development of May 2009, President Obama decided to reverse a promise to release photographs illustrating detainee treatment in Iraq. On May 13, 2009, the president gave a statement "on the situation in Sri Lanka and Detainee Photographs."

President Obama (May 13): Individuals who violated standards of behavior in these photos have been investigated and they have been held accountable. There was and is no debate as to whether what is reflected in those photos is wrong. Nothing has been concealed to absolve perpetrators of crimes.

Astoundingly, the president at once adopted a "bad apples" posture of resting blame on individual low-ranking troops while underplaying the crimes depicted in the photos that were endemic especially during the early days of the Iraq occupations, and repeated at Guantanamo. Bagram, and throughout the world.

Useful violations, too big to prosecute
Mr. Obama's January declaration that "my orientation's going to be to move forward" apparently not only meant that Bush-era crimes would not be prosecuted, but that they would continue under the new president. Evidently the policies of indefinite arbitrary detention in black-hole prisons, kangaroo commissions where accusation is equal to conviction, and state-secret-protected spying are violations too big and too useful for accountability.