Obama and The Rule of Law

In an editorial published today in The New York Times is critical of Obama for not reversing all of  George Bush’s “misguided and dangerous policies on terrorism, prisoners, the rule of law and government secrecy.”

As much as it needs to happen, we never expected President Obama to immediately reverse every one of President George W. Bush’s misguided and dangerous policies on terrorism, prisoners, the rule of law and government secrecy. Fixing this calamitous mess will take time and care — and Mr. Obama has taken important steps in that direction.

But we did not expect that Mr. Obama, who addressed these issues with such clarity during his campaign, would be sending such confused and mixed signals from the White House. Some of what the public has heard from the Obama administration on issues like state secrets and detainees sounds a bit too close for comfort to the Bush team’s benighted ideas.

There are times when the president seems to be making a clean and definitive break. On his second day in office, he ordered the closing of the prison at Guantánamo Bay and directed his cabinet to formulate new policies on detaining and interrogating people suspected of terrorist acts or of supporting terrorists.

Last week, the administration notified a federal court hearing appeals by Guantánamo inmates that it was dropping Mr. Bush’s absurd claim that he could declare anyone an “enemy combatant” and deprive that prisoner of judicial process. The administration affirmed its commitment to the laws of war, the Geneva Conventions and long-standing military doctrine.

But the break does not always seem complete enough. Even as they dropped the “enemy combatant” terminology, Mr. Obama’s lawyers did not seem to rule out indefinite military detentions for terrorism suspects and their allies. They drew a definition of association with Al Qaeda that is too broad (simply staying in a “safe house,” for example). Worse, they seemed to adopt Mr. Bush’s position that the “battlefield” against terrorism is the planet. That became the legal pretext for turning criminal defendants into lifelong military captives.

At this point I am disappointed in some of Obama’s actions but also believe it is far too early to come to any conclusions as to the ultimate policies of the Obama administration with regards to handling of terrorism suspects. It is far more difficult to change course on a policy in effect than to make policies when starting with a clean slate. Realistically I also voted for Obama expecting a considerable improvement in policy, not with any expectations of  total agreement with everything done by Obama. I continue to remain optimistic that when Obama leaves office we will have government policies which are greatly superior to those present when Obama took office.

Another area in which Obama has been resisting taking sufficient  action is in investigating the previous offenses of the Bush administration. The editorial later argues:

Mr. Obama also should stop resisting an investigation of Mr. Bush’s policies on terrorism, state secrets, wiretapping, detention and interrogation. We know he is struggling with many Bush-created disasters — in the economy, in foreign policy and on and on. But understanding all that has gone wrong is the only way to ensure that abuses will truly end. That investigation should be done calmly rather than under the pressure of some new, shocking revelation.

I fear that Obama believes that avoiding such investigations is part of his desire for post-partisanship and to move beyond the political battles of the past. Unfortunately ignoring the past does not put an end to such partisanship, as we saw with Dick Cheney’s recent attacks upon Obama. Even more seriously, failing to take adequate action in response to such violations of law only encourages their repetition under a future administration.

To Dick Cheney the lesson of Watergate was that the Executive Branch must do even more to secure its power. Gerald Ford, like Barack Obama, desired to put aside the political battles of the past. He made the tragic mistake of pardoning Richard Nixon who should have been imprisoned if this is truly a nation of laws and not of men.

The failure to punish Richard Nixon preserved the atmosphere of the president being above the law, teaching the wrong lesson to Dick Cheney. While there is no guarantee he would have behaved any differently had Nixon been punished, such an action would have inhibited other presidents from acting as if they were above the law. We must now investigate the crimes of the past eight years and allow justice to take its course, regardless of how high up in the government this goes.


  1. 1
    Eclectic Radical says:

    I have to agree with the bulk of this post, as I myself voted for President Obama because of hope for significant improvement over the Bush administration and a lack of faith in the ability of another Republican administration to provide same. I am more satisfied than not with the results thus far, with reservations that could still be conquered before the end of the first term. Nor is it likely that I am going to vote for the President’s Republican opponent (barring a very different kind of Republican nominee than we’ve seen in the last twenty years) no matter how incomplete I feel the changes to be. I trust the president’s character and ability to a great enough degree that I am willing to give him a chance even when I disagree with him, though I admit I would like to see more radical action in some areas… especially health care.. and feel his economic policies to be too conservative.

    I have to say that my biggest reservation is the so-called ‘Global War on Terror’, which is a propaganda device from beginning to end. ‘Terror’ is not a unified force that can be fought globally, but rather a collection of independent causes and grievances that must be addressed separately. I am not sure whether the current administration is victim to that propaganda or attempting to co-opt it It bothers me either way.

    I do have to say that I agree, in principle, that quite a few members of the Bush administration need to be prosecuted and that a major investigation to determine just who to start with is necessary. I also completely understand the reasons it is not happening. The simple fact is this: such an undertaking would rapidly become the defining issue of the Obama Presidency and it would be all but impossible to address any other matters. Moreover, Republican partisans would view it as partisan political persecution and would escalate in kind. Honestly, it was not something that was ever going to happen.

    I think this is a tragedy, but I don’t know if our system of politics and government allows an alternative course of action.

  2. 2
    Ron Chusid says:

    I agree that prosecution is unlikely. Therefore I might discuss this when relevant to another article I am posting but have not made a big point about this. There’s little point in wasting much effort complaining that Obama is not going to do something I never expected him to do.

    One reason is the risk of political backlash, although in principle those who deserve prosecution should be prosecuted regardless of this. However, if hypothetically I was Obama and recognized the importance of prosecution I would not make a big issue of this because of the politics and allow it to start with more routine investigations and work its way up. While I doubt it, my hope is that this is the ultimate plan.

  3. 3
    Eclectic Radical says:

    Part of me is hoping that there are major investigations planned for after the matters of the economy and health care are fully addressed, but I doubt that too.

    I have to admit, I honestly don’t know what I would do if I were Obama. When one is a visionary with an agenda, one tends not to want to see that agenda hijacked by anything and is willing to make necessary compromises to protect said agenda. I agree, in principle, that those who deserve prosecution should be prosecuted and political backlash should not be considered. Unfortunately, politics is all about things like political backlash. I don’t think it would be possible to prosecute a former president or key advisors without a high level of bipartisan demand for said individuals’ head or heads.

  4. 4
    nomoreGOP says:

    I agree Ron,

    I think that the more and more tid-bits that keep coming out (i.e. CIA destroying almost 100 articles related to the torture issues) that really have concrete evidence of wrong-doing, the more “small” investigations will start popping up here and there, which hopefully will lead to indictments that, hopefully lead to deals being made in order to get more info..

    one can only hope, right?

  5. 5
    Ron Chusid says:

    I’m not terribly optimistic but it is certainly possible that if investigations are in progress they will ultimately lead to the top.

    Politically it will be more acceptable to see investigations and possible prosecution of a former president or vice president if it leads naturally out of evidence obtained during investigations. There is no way that Obama can  call for such investigations at this time without political backlash. He needs to stay out of it (and preferably stop having his Justice Department interfere with investigations).

  6. 6
    Christopher Skyi says:

    “Mr. Obama’s lawyers did not seem to rule out indefinite military detentions for terrorism suspects and their allies.”

    It’s worrisome on a couple of fronts: first, it is a clear pull-back from Obama’s campaign promises: it undermines both the Constitution and trust in Obama, though compared to Bush, Obama is still far superior.

    Still, it makes one wonder what changed since the election. Why the pull back?  He has now full access to the intelligence information — what has he learned since becoming president?  Is HE now more worried than he thought he would be.

    From the AP:

    “Vijay Padmanabhan, a former State Department lawyer responsible for Guantanamo-related cases said Friday that the Bush administration overreacted after 9/11 and set up a system in which torture occurred. He is at least the second former Bush administration official to publicly label “enhanced interrogation techniques” as torture.”

    This isn’t news, but the reasons for the “overreaction” casts the Bush administration in a slightly different light, i.e., they weren’t just “evil” guys who enjoyed torture for the hell of it — they were scared:

    “Padmanabhan said he believes these tactics — which the International Committee of the Red Cross has also described as torture — were approved because the White House was shocked by the Sept. 11 attacks that killed nearly 3,000 people, and wanted to prevent other horrors.
    “These are not things that I think any American president would have authorized had they been in a calmer environment,” Padmanabhan told AP in a telephone interview.”
    Is the reason the break from the past administration is “not complete enough”  is because Obama is worried?  And about what?

  7. 7
    Ron Chusid says:

    Nobody doubts that there is any reason to be worried. There were many Democrats and liberals talking about the dangers of terrorism going back to well before 9/11 with Republicans dismissing this. The question is not whether there are things to be worried about but how we respond to these worries.

    I don’t doubt that people in the Bush administration were scared. That does not justify their response. They both overreacted and violated international law, despite the fact that their tactics do not result in worthwhile results. Real life is not an episode of 24.

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    Eclectic Radical says:

    I think John Kerry really nailed it on the head in the 2004 election, and I am still pissed as all heck about the grief he took for it. Terrorism is a law enforcement and intelligence issue and, by simply using existing police and intelligence agencies and existing law, the threat can be drastically decreased. The kinds of threats to civil liberties established by the Patriot Act and White House protocols are simply not necessary.

    I think the problem is that, once in power, a president has to make Americans feel safe. I believe the Obama administration feels that weight more heavily than the Obama campaign did.

    The big problem with that thinking, though, is that we are in no more danger after September 11 than we were before September 11. It was a horrible tragedy, but it happened because people failed to do their jobs within the existing rules and not because the rules were just not ‘tough’ enough. Before it happened we had an exaggerated belief in our safety, and since it happened we have an exaggerated belief in our danger.

  9. 10
    Ron Chusid says:

    While it doesn’t change your main point, before anyone attacks Kerry I should also clarify. He discussed the importance of law enforcement and intelligence, but also did include military action when necessary. I wouldn’t want anyone to twist this to say that Kerry and other liberals are opposed to necessary military action.

    With regards to Kerry, his involvement in the issue tremendously pre-dates both his 2004 campaign and 9/11. This includes a book on the topic before 9/11.

  10. 11
    Eclectic Radical says:

    This is true, he did defend military action when it was necessary and could be effective. However, he believes it should be used very judiciously and as a distaff re-enforcement to law enforcement and intelligence. I happen to agree with his ideas.

    Senatorial voting records would suggest Kerry and other liberals aren’t opposed to unnecessary military action when they think it would look disloyal to vote against it. Senators Clinton, Kerry, and Edwards all voted to invade Iraq. Senator Clinton also voted with the administration in an abortive gear up to war with Iran.

    I say that not to bash them, but simply to note that many Democrats and liberals are as hawkish as Republicans.

  11. 12
    Ron Chusid says:

    Kerry did not really vote to invade Iraq, although he admits he made a mistake in casting a vote which facilitated this.

    At the time of the vote Bush was saying that this was not a vote to go to war, but only a means to put more pressure on Saddam. Of course we all knew he was lying. Kerry gave a detailed explanation of his vote at the time in his Senate floor statement and in an article published both in The New York Times and Foreign Affairs. He made it clear that his intent was to hold Bush to his word that this was not a vote to go to war, and that the resolution would only be used to go to war if absolutely necessary. He laid out conditions under which going to war was acceptable and promised that he would oppose Bush if he went to war unnecessarily. Conditions for going to war included proof that we were actually threatened by WMD from Saddam, which was never the case.

    When conditions necessitating going to war were not met, Kerry spoke out strongly against going to war prior to the onset of the war. At the onset of the war Kerry even called for regime change in the United States in protest. Before Dean made this an issue in the primary campaign, newspapers often listed Kerry as an opponent of the war, based upon his pre-war statements. Dean managed to get the resolution interpreted after the fact as a litmus test, leading many to reclassify Kerry as a supporter.

    While I disagree with his vote (and Kerry admits he made a mistake) I do not list Kerry among those who supported unnecessary military action. In contrast, Edwards and Clinton didn’t speak out against the war until well after this became the politically safe thing to do. During the campaign Clinton tried to use Kerry’s defense of the vote but her argument doesn’t hold up. It was one thing for Kerry to stipulate the legitimate reasons for going to war and opposing the war before it started when those conditions were not met. It was an entirely different thing for Clinton to come out against the war years later and then try to distance herself from her vote (as well as her earlier statements supporting the war).

  12. 13
    Eclectic Radical says:

    Actually, I have to admit you are correct and thank you for correcting me. I was a little quick to include Kerry with Clinton and Edwards and for that I should apologize.

    Just to say it, in case my statement about the war conveyed a misimpression of my feelings about Senator Kerry, I believe he would have been an eminently more qualified choice for Secretary of State or Defense than Secretaries Clinton or Gates. My ideal cabinet would have been Kerry or Bill Richardson at State, Kerry or Wesley Clark at Defense, and John Edwards at AG. The only member of my ideal cabinet who was picked was Hilda Solis, at Labor.

  13. 14
    Ron Chusid says:

    Kerry would have been more qualified at State, but I also think that chair of the Foreign Affairs Committee is a good place for him. In the case of Clinton, the main reason to put her in the cabinet was to get her out of the Senate and prevent her from developing her from opposing Obama from the Senate.

  14. 15
    Eclectic Radical says:

    I understand the point of giving Clinton State, I simply don’t feel she is qualified for the position and I am not certain having a neoconservative whose foreign policy positions are identical to those of the past administration is wise. There are ways to deal with cranky senators, but after making a huge investment in a Secretary of State it will be a political blow up if he ends up having to fire her at some point.

  15. 16
    Ron Chusid says:

    It would be awkward to fire Clinton, but at least there is this option if she publically opposes him. After being fired she would no longer be in the Senate, which provides motivation to her to avoid doing anything which would justify firing her. Beyond this, I think Clinton will try to be a good team player knowing she would ultimately damage her own legacy by doing otherwise.

    Clinton is far from the ideal Secretary of State but she is bright and hard working. Her major problems have been due to poor judgement. Most likely foreign policy will be run from the White House and Clinton will be left to institute such policies.

    To some degree this is unfortunate. Secretaries of State who have the trust of the president have been the most successful. While having Clinton in the post is unfortunate, getting her out of the Senate and in a postion where she had to back Obama’s policies was beneficial.

  16. 17
    Eclectic Radical says:

    I guess my big issue is that ‘major problems due to poor judgement’ do not inspire confidence in a SecState.

    I don’t disagree with your evaluation of the political motivation behind the appointment at all, I am just not sure I agree that the political upside outweighs the practical downside of having a SecState the White House had to ride herd upon.

  17. 18
    Ron Chusid says:

    Yes, I would rather have a Secretary of State who exercises better judgment (and who doesn’t have such conservative views) but at least she is unlikely to influence policy in the way some previous Secretaries of State have. I don’t really think they will have much trouble with Clinton in this post as the position pretty much requires her to be subservient to the president. I don’t think she will want to destroy her legacy by doing otherwise.

  18. 19
    Eclectic Radical says:

    I haven’t been able to make up my mind yet. I don’t want to believe the ‘worst case scenario’ ideas thought up by the hard core Clinton haters, and I really liked the Supreme Court notion that a few Clinton-friendly Obama supporters and softer core Clinton supporters had been kicking around. I don’t really have a high regard for Hillary Clinton, but I don’t consider myself one of the people who thinks her Evil Incarnate either.

    I think you are probably right, but this one of those things I will suck up and deal with but never really reconcile to. 🙂

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