Obama’s Bed: He Made It and Now He Lays In It

I have been following the news after the death of Osama bin Laden and there is a growing narrative questioning the legality of the Obama Administration’s actions in that incident.  As part of my initial investigation into this topic I came across the following article by Owen Fiss in the Boston Review.

It is a well written article which deals mainly with the policies of the Obama Administration and how they are merely extensions of the Geroge W. Bush policies that were in place before he was elected.  The author makes a very good case for how Obama doesn’t deserve any sympathy for where he finds himself with respect to the handling of Al Qaeda prisoners.

Here is a short list of quotes taken directly from the piece that I found particularly enlightening:

1. “Obama proposed legislation to revise the evidentiary rules governing military commissions. The result was the Military Commissions Act of 2009, under which Khalid Sheikh Mohammed and [four other] Guantánamo prisoners will now be tried. In proposing this measure, Obama built upon similar initiatives by Bush, who had issued in November 2001 an executive order establishing military commissions for the trial of Guantánamo prisoners.”
2. “The 2009 Act thus constitutes a further institutionalization of an irregular alternative that the government might use—for reasons we will never wholly know—to prosecute suspected terrorists whom the president determines are not protected by the Third Geneva Convention (Bush referred to them as unlawful enemy combatants; Obama calls them unprivileged enemy belligerents).”
3. “In the past, military commissions have been used on the battlefield to try belligerents caught red-handed and accused of war crimes. In such circumstances they have been allowed as tribunals of necessity. The 2009 Act and Bush’s earlier measures transformed them into tribunals of convenience, for the statutory changes allowed military commissions to be used for trials at Guantánamo—far removed from any battlefield—for persons held years for on end, in some cases almost a decade.”
4. “Given his National Archives speech and his sponsorship of the Military Commissions Act of 2009, Obama is in no position to complain of the threat that the use of military commissions in these circumstances poses to due process.”
5. “In his National Archives speech, Obama not only defended the use of military commissions, but also endorsed Bush’s policy of imprisoning suspected terrorists without providing them with a trial of any type.”
6. “Obama denies that habeas is available for the prisoners of Bagram, just as Bush denied it was available for the Guantánamo prisoners.“
7. “Given his support for military commissions and indefinite detention without trial, Obama’s determination to close Guantánamo has become a gesture of doubtful significance.”
8. “The June 2008 Supreme Court decision in Boumediene v. Bush relieved Obama from having to take any position on the availability of habeas corpus for Guantánamo prisoners, for in that case, the Court upheld the constitutional right of Guantánamo detainees to the writ. … In response to habeas petitions from prisoners held at Bagram Air Force Base in Afghanistan, Obama’s lawyers have argued in Al Maqaleh v. Gates that the Boumediene decision should be confined to Guantánamo and Guantánamo alone, and that the prison at Bagram—a facility maintained by the United States and one to which terrorism suspects from the four corners of the earth have been brought—lies beyond the reach of the Constitution. In taking this position, Obama has further deprived the act of closing Guantánamo of meaning.”
9. “In February 2011 the district court, over the objection of Obama’s lawyers, permitted the prisoners to amend their habeas petition and thus proceed to an evidentiary hearing on their claim.”
10. “Obama, rather than dismantling Bush’s counterterrorism apparatus, has in crucial respects perpetuated it. He has sought to deny habeas corpus to Bagram prisoners, endorsed the policy of imprisonment without trial, and, as vividly indicated by the turnaround with Khalid Sheikh Mohammed, continued the use of military commissions. … With Obama’s sanction, Bush’s counterterrorism policies have become durable features of our legal order. They have shaped our understanding of what is acceptable, and may well serve as precedents for a less reluctant president.“

This last part is particularly poignant.  For all of the bluster from the Democrats during the Bush Administration regarding Guantanamo Bay and the rights of the Al Qaeda terrorists what we now see is not only the perpetuation of the Bush Policies but in some cases their emulation and expansion.

Read the original in its entirety:

• Boston Review — Owen Fiss: A Predicament Of His Own Making.
• WebCite entry for the above article.