Obama’s crock

In his speech at the National Archives yesterday, Barack Obama gave a full-throated, campaign-style version of the left-wing critique of the Bush administration’s national security policies. As John pointed out in his excellent dueling speeches series of posts, the speech cannot withstand serious scrutiny. It is a crock.

Where was the brilliant Lincolnian rhetoric Professor Goldsmith finds in Obama’s deep thoughts? Where the Rooseveltian diplomacy? Perhaps it was in the ascription of irrational “fear” to the Bush administration and “foresight” to himself that Obama ascended the heights Goldsmith finds in Obama’s musings. Professor Goldsmith, is this what you were talking about?

The contrast Obama drew between Bush administration policies and the Constitution was particularly disgusting. To the vision of his own high-mindedness Obama added the inevitable (for him) autobiographical element:

I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights -are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – “to form a more perfect union.” I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience [sic] sake.

We draw one hard one hard and fast rule from this passage. If old man Obama apppears in a speech, Obama is losing an argument. Looking back at his race speech, we can deduce the same rule from any reference to Grandma Dunham.

Here the argument Obama is losing is to Vice President Cheney. But Obama’s real problem is with fellow Democrats who reflect the “fear” of their constituents regarding the closing of the detention facility at Guantanamo. There aren’t many people on the mainland who fancy having the Guantanamo detainees for their neighbors. They “foresee” problems with that.

So run that argument by us one more time, President Obama. Why are we closing Guantanamo? I forget:

For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of Military Commissions at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setbacks, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over five hundred and twenty-five detainees were released from Guantanamo under the Bush Administration. Let me repeat that: two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.

There is also no question that Guantanamo set back the moral authority that is America’s strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. Indeed, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law – a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

Obama alludes to the Supreme Court’s 5-4 decision in Boumediene granting Guantanamo detainees the right of habeas corpus. Was the Bush administration’s opposition to Boumediene’s claim lawless or unreasonable? Not at all.

In opposing Boumediene’s lawsuit, the Bush administration relied in part on the Court’s decision in Johnson v. Eisentrager. In Eisentrager the Court held that nonresident enemy aliens have no right to seek relief in the federal courts in wartime. The Court did not expressly overrule Eisentrager in Boumediene, but Boumediene cannot fairly be reconciled with Eisentrager.

The distinctions drawn by the majority between Eisentrager and Boumediene in part IV of Justice Kennedy’s opinion are remarkably unpersuasive. The unpersuasiveness of this crucial part of the opinion shows the Court, rather than the Bush administration, to have acted arbitrarily on the point in issue.

Justice Scalia noted in his dissent that the Court’s decision was difficult to reconcile with American history as well as its own precedent: “The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court–and that despite the fact that they were present on U. S. soil.”

Putting all this to one side, why is it a good idea to bring the Guantanamo detainees to the United States? “Rather than keep us safer, the prison at Guantanamo has weakened American national security.” Oh, yeah, I remember now. Bringing these terrorists to American soil will make us safer. How did the Bush administration pull the wool over our eyes for so long?

A few more questions come to mind. Does Obama think that detainees of the American military held outside the United States in facilities other than Guantanamo have a right of access to the federal courts? How about the Taliban detained by American forces at Bagram? Will Obama do the old man proud in extending habeas corpus to the Taliban in Afghanistan? Or will Obama throw the old man under the bus?

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