Tuesday, November 16, 2010

A Foolish Consistency

When he was running for president, Obama made it sound like trying alleged terrorists like Khalid Sheikh Mohammed ("KSM") in civilian courts was not only a matter of high legal principle, but an urgent national security imperative.  Here he was, for example, responding to a question from Jake Tapper in June, 2008 (my emphasis):
“[I]t is my firm belief that we can track terrorists, we can crack down on threats against the United States, but we can do so within the constraints of our Constitution. And there has been no evidence on their part that we can't. . . .

“What we know is that, in previous terrorist attacks -- for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims.'

“So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.”
Over the weekend, when the administration could hope that no one was listening, the Washington Post reported this (my emphasis):
“Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

“The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

“The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

“The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment.
Granted, no final decision about a KSM trial has been made. Those unnamed administration sources may have been just floating a trial balloon to see if Obama can get away politically with deferring a decision about the KSM trial until after the 2012 election. But the mere fact that this administration would test these political waters is a less-than-inspiring show of dedication to the apparently high ideals of his presidential campaign. In the real political world, flips don’t get much floppier than this, so you can’t blame conservatives for having some fun at Obama’s expense.

But look at what Obama was saying during the campaign more closely and ask yourself: is what he's evidently contemplating now really all that inconsistent with what he was saying during the campaign? If you ask me, the more closely you inspect Obama's campaign rhetoric, the less surprising his apparent flip-flop becomes.

You’ll notice that Obama never told Tapper, or anyone else to my knowledge, exactly how the Bush administration’s policy of trying alleged terrorists before the military commissions rather than civilian courts violates the Constitution or undermines the rule of law. You might even get the idea that Obama never really thought it did, or at least changed his mind about whether it does, since his administration has kept the military commission system in place without lifting a finger to strengthen its due process guarantees.

So if you were ever expecting to get a bead on what counts, from Obama’s point of view, as upholding the Constitution and the rule of law you’re on your own. The only thing you can know for sure is that he once cared a lot about what other people regard as upholding the rule of law inasmuch as the only downside of Bush administration policies that Obama bothered to mention during the campaign is that they “destroyed our credibility when it comes to rule of law all around the world and given a huge boost to terrorist recruitment.” You might get the idea that Obama cares more about looking like he’s upholding the rule of law in the eyes of trans-national elites and potential jihadists than actually upholding it.

But resist that cynical thought. Suppose that Obama really does adhere to legal principles that condemn the Bush administration’s terrorism policies even if we don’t know exactly what they are. How much does Obama care about upholding them? Again it’s impossible to tell because he has always portrayed the rule of law as a free good, at least insofar as its costs are calculated in the currency of national security. Obama has never said to my knowledge that we should be prepared to cope with a little more national insecurity in deference to our ethical and legal ideals. Instead, he always assured us that “[w]e could have done the exact same thing [the Bush did to promote our national security] “but done it in a way that was consistent with our laws.” So there was never any way during the campaign for us to know what price Obama would be willing to pay to uphold the high ethical and legal ideals he alluded to throughout his presidential campaign.

Under the circumstances, you may be appalled, but are you really surprised to see the Obama administration sending out these kinds of trial balloons?


DannyP said...

Obama's flip-flop might be the most disheartening development yet. No one in this White House, Obama least of all, shows any awareness that he is losing moral stature by the minute. What are these people thinking?

Anonymous said...

Congress doesn't have the authority to stop of the administration from holding the KSM trial in a civilian court. The administration is caving to a co-equal branch of gov't, it's following the polls.

Anonymous said...

I'm not surprised. Obama is so over his head. He ran a campaign as an articulate speechgiver but is running an emptyheaded administration that doesn't have a clue.

Anonymous said...

Just watch now - after today's verdict. Maybe closing Gitmo isn't such a great idea. What do you want to bet that detainees just stay detained -- indefinitely - no trials, no tribunals -- just Gitmo for a long long time.