The horizon is not so far as we can see, but as far as we can imagine

The Thought Crimes President

Obama Change Poster

Obama Change Poster

Obama today, on how he intends to give up liberty to get safety:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

In other words, people who have committed no crime which can be proved in a court of law, including the crime of conspiracy, will be held indefinitely without a trial.  Note that Obama wants to use military commissions to try some detainees, which means that these detainees can’t be found guilty of anything even under military law.

This is punishment for a thought crime.  It is also exactly the same rationale used by the Bush administration.

Obama also said something else which is a continuation of Bush administration excuses:

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.

Now, this is simply wrong.  Here’s the Presidential oath of office, as enumerated in the Constitution:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Nothing about the most important duty being to keep Americans safe.  The first duty is to preserve, protect and defend the constitution.

What’s the constitution have to say about punishing people without a trial?  Well, the fifth amendment says:

No person shall be deprived of life, liberty or property without due process of law.

In other words, you get a trial.  What about the idea that civilian courts shouldn’t have jurisdiction?

The privilege of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

Note that America is not invaded, and it is not in the throes of a rebellion.

Heck, this isn’t even just violating the constitution, it doesn’t even match up to the Magna Carta, a document 800 years old:

No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, not will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.

Which is to say, you can’t be punished without being convicted by a jury of your peers.

The danger with Obama is, in certain respects worse than that of the Bush administration.  Bush certainly wrapped his actions in the flag, but less so in the Constitution.  The phrase “the constitution is not a suicide pact” implicitly admitted that what was being done didn’t meet a strict interpretation of the constitution, but hey, they couldn’t have really meant those words for “bad people”.

Obama instead implicitly claims to come to praise and protect the constitution, not to bury it:

Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.

Having said that, he then wants to do things which go explicitly against the values in the Constitution. If those aren’t American values, then I certainly don’t know what are.

America was born in a fight against tyranny.  The idea of the executive being able to hold people indefinitely without trial is inherently despotic and destructive of liberty.  The only way to determine guilt is with a trial.  As Benjamin Franklin (who knew a thing or two about American values) said, it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.

Ben Franklin also said something else, which has been quoted a great deal in the last eight years, for good reason:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

The idea that safety can be purchased by giving up liberty is simply wrong.  Americans have much more to fear from a President who can lock up folks indefinitely without a trial than they do from al-Qaeda.  Republicans, think about a Democrat able to do it (say Hilary).  Democrats, think about the next Bush (and there will be one) able to do that.

In terms of foreign policy, America’s great strength, as Obama explicitly recognized, was its values.  Those values gave America moral authority and made other countries feel that America was in the right.  An America which holds people without trial, which violates the right of habeas corpus and which violates its own constitutional values is no beacon to the world and cannot effectively argue for its own values.  Such an America is just another self-interested power player, little different from any other.

Obama is certainly the master rhetorician he has been acclaimed as.  He has wrapped an essentially un-American policy in American values, and used the same rationale as George W. Bush, that he has to take away a little liberty, in order to give Americans a little more safety.

And perhaps he has a point.  Perhaps some of the prisoners, if released, will go back and take up terrorist activities again.  Let us assume, for the point of argument, that they will.

Does that mean that we punish them for crimes they have yet to commit?  Does that mean we assume that we know that all of those chosen by Obama to be punished will commit crimes?  Does that meant that it is not better that 100 guilty men go free rather than one innocent man be falsely imprisoned?

And where do we draw the line?  Once we’ve decided that thought crimes are worthy of preventative punishment, once that is a principle embedded in the law, who else are we going to lock up whom we can’t prove has committed a crime, not even that of conspiracy, because we think they may commit one in the future?

That’s not a power any human being should have over another.

But it is the power Obama has demanded, has arrogated to himself, just as George Bush does.

If that isn’t against American values, then at long last, I don’t know what American values are.

But I think it is clearly anti-American, and I think all those who have said “give me liberty or give me death”, or similiar phrases, recognize in their hearts that what was done under Bush and what Obama is attempting to do are fundamental violations of the values that made America what it is.


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  1. Tallifer

    Were the American constitution or Magna Carta written with the intention of applying said rights to foreign enemies? Both assumed that certain groups were outside the rights of “free men.” The Americans accepted this assumption when they ammended their constitution to include women and all races: otherwise no ammendments would have been necessary.

    I am not arguing for America’s detainee policy. I am asking whether we ought not consider other bases of universal human rights from which to critique American actions and decisions. And I am sure that yourself and others here can refer the readers to well-reasoned treatises on universal human rights. (Hopefully freely available on the internet.)

  2. Ian Welsh

    Well, fundamentally they either have to fall under the civilian courts, or they fall under the Geneva conventions. If the first, then they are covered by the Constitution, if the second they are due a specific type of military tribunal. In neither case can they be held forever without being charged with any crime, and if they fall under the Geneva conventions they have to be treated in specific ways they haven’t been treated in either by Bush or by Obama. There is no third category under law.

    Even foreigners have all the constitutional rights if charged with a crime in the US – if you were charged with murder (or whatever) you’d have a right to an attorney, to a speedy trial, to hear the charges against you and face your accuser, etc… All races and both sexes are now covered, and so are foreigners.

    There is a universal declaration of human rights, adopted in 1948 by the UN, which the US signed, but it’s non binding and the binding version the US caveated so heavily that it might as well be non binding.

  3. Ian Welsh

    But also, Obama ran against this sort of thing.

  4. He that would make his own liberty secure, must guard even his enemy from oppresion; for if he violates this duty he establishes a precedent that will reach himself. Thomas Paine

    Even I held a slim glimmer of hope. “America” is over.

  5. Don

    There’s a huge difference between a thought crime and having a mountain of evidence that won’t hold up under US court rules of evidence.

    This is a false dichotomy.

  6. JustPlainDave

    On what legal basis do you assert that those legally and legitimately designated as enemy prisoners of war cannot be held indefinitely? They can’t be held in the absence of hostilities, but until such time as hostilities are concluded they certainly can be. The whole point of that block of the speech was about establishing a regime around the determination of status, with periodic review and oversight – that’s already beyond what’s specified in the Genevas. They have the right to challenge their status findings (and indeed the whole determinations process) in US courts – again beyond the requirements laid out in the Genevas. How much further does one go without doing away with the whole category of prisoners of war entirely?

  7. Ian Welsh

    Going to war with a criminal organization like al-Qa’eda (which is not a state) is inherently problematic. It’s the equivalent of saying you’d lock up IRA members indefinitely without a trial until the state of war against the IRA goes away (which would have been more than a human lifetime).

    As for the Taliban, if they want to give them all their Geneva convention rights I might be able to live with that (though after 6 years, one might argue that it’s a bit late for that). However it’s unclear, because the Taliban has been designated by the Military Commissions Act as a terrorist organization, if even once the US leaves Afghanistan (which presumably it will eventually do, one way or the other) that they wouldn’t still be considered “unlawful enemy combatants” and still held. When you deny an organization like the Taliban its legitimacy (like it or not, they were the government of Afghanistan and have the right to defend the country from a foreign invasion and fight on as insurgents) then again, it becomes problematic. They’re either the fallen government, in which case they have a right to fight and the war can END, or they are a criminal organization, in which case they get civilian courts. You can’t have it both ways.

    Eternal wars combined with executive discretion at locking people up without trials are a really, really bad idea. Creating an alternative military system with very lax evidentiary rules (even more lax than normal military justice) is likewise very dubious. Give them status determinations under normal military justice. Give them trials under either military or civilian courts. But don’t make up bogus military comissions because you know you can’t get the results under the normal rules of law – not even under normal military law.

  8. Lex

    Well said, Ian, thank you.

    The false dichotomies reside within the concept of the War on Terror itself with its slippery definitions. None of us are in serious danger of dying from a terrorist attack in any case. If there were a rational argument to support the fear of terrorism, then half of the Bush/Obama arguments might hold some water.

    But there is no rational argument that explains an irrational fear stoked by the very people proclaiming their heartfelt intent to keep us safe. Especially considering the fact that the people who talk about keeping us safe go about it by making as many enemies as possible.

    And that’s not even with exploring US complicity in the movements we’re currently “threatened” by.

    This speech, the tenor, and the direction of the Obama administration is…excuse my language…bullshit. The tyrants create the threats that require tyranny. Paul Nitze is still scaring the hell out of the American people from beyond the grave.

  9. JustPlainDave

    I don’t think that the conflict between the IRA and the British government is the best analogy to draw for this particular set of circumstances. IRA members were, in the eyes of the British government at least, subjects of the crown. For a host of reasons they were specifically denied prisoner of war status – as a class – and were treated as criminals. This was a viable approach because by definition as subjects of the crown they had committed criminal offenses. The whole challenge that we currently face is that some of the folks that we are dealing with have may not have committed a criminal offense. This whole mess rests on the back of making judgments on the basis of membership in a class, rather than as individuals – in short, our scenario is different in some really important ways.

    As to the length of the detention, there is nothing in the Genevas about there being limits as to how long prisoners of war may be held, if a state war exists. State powers are encouraged to explore parole, but there is nothing requiring this and if I recall correctly states are even entitled to specify that their members are forbidden to accept it.

    My read of Obama’s speech is that its entire thrust is that there will no longer be a “third category” of unlawful combatants – afforded neither the protections of criminals nor of combatants. Those captured fall into the five categories that he specified:

    1. those tried criminally in the US judicial system for criminal offenses;

    2. those tried by military tribunals for crimes against the laws of war;

    3. those released as ordered by US courts;

    4. those deported to another country; and

    5. those detained indefinitely, on the basis that they are classified as prisoners of war or some closely aligned status.

    Near as I can tell, this moots all the issue of whether the Taliban was the legitimate government of Afghanistan (and even the issue of the status of affiliates of non-state actors such as al-Qa`eda). In effect, the default status that an enemy fighter has is prisoner of war, and they are able to challenge that status determination in US courts. In short, it looks to me like you’re getting what you wanted. Additionally, near as I can tell you’re largely getting the same thing in the military commissions – the evidentiary standards are to be tightened and there’s a very conscious effort to make the process subject to judicial and congressional oversight.

  10. As one who was an activist for Obama’s election, many of the recent elements/outcomes have caused a considerable sadness (although it still remains true that McCain/Palin would have been 10X worse). In relation, he (Obama) invited us to challenge him if he were to go off course. Well, when it comes to “thought crimes,” covering up for the previous administration, appeasing the republicans/neocons (without reciprocation), renewed claims and abuses of State Secrets/National Security privileges, and going back on his word (more than once), it is time to challenge – vociferously.

    …Adding your site to my blogroll ~

  11. Nick Egnatz

    I enjoyed the article and the discussion. If I may make a suggestion though, all of the discussion is looking at the issue as America is and has been the ‘city on a hill’ for all to emulate. We were set up as an empire saying “all men are created equal”, but setting up a constitution which denied rights to the First American residents, African slaves, women and the majority of whites who did not hold property.
    Our history has been one of slavery of Africans, genocide on the Native Americans and wars of aggression against all the Native American tribes, Spain, Mexico, Philippines, Vietnam, Iraq, Afghanistan. These have been and continue to be the American values Obama refers to.

    On the issue of torture we have been a little better than some others, but that has been pretty much confined to our treatment of white Europeans and certainly not Vietnamese, Filipinos, Nicaraguans, Salvadorans, Chileans or any non Israeli residents of the Mideast.

    The U.S. is an Empire and both political parties are lockstep in support of it. Antonio Gramsci wrote his “Prison Notebooks” from Mussolini’s jail. He said that elite minorities achieve hegemony over majority populations when their domination of the majority is consensual. The elite transnational corporate capitalists (think globalization) have certainly achieved this position. The first step is to withhold our consent and scream it as loud as we can.

    Of course this was all dramatically brought out last fall when both presidential candidates fell in line supporting the bailout of the Wall Street ‘banksters’ while American citizens were being laid off and foreclosed on by the millions. Public sentiment was probably 90/10% against the bailouts, yet our supposed democracy went against the will of the people, supported the banksters and the citizens were left unrepresented with nowhere to turn.

  12. Dale A. Sender

    This is the most alarming trend towards a full blown, no holds barred DICTATORSHIP since George W. Bush’s illegal squatting in the White House ended.

    We now have an alleged ‘Constitutional Scholar’ that is eviscerating and destroying the U.S. Constitution and Bill of Rights, right on nationwide television set, not like Bush’s little “it’s just a goddamned piece of paper” speech to about ‘7’ U.S. senators when they confronted him about his impending DICTATORSHIP.

    I think it’s time for the people to arm themselves and be ready for the imposition of Martial Law and to resist. I’m not readily led down the path of violence, but if the nation is going to become a DICTATORSHIP, then it’s going to come at a very terrible price to those imposing this on us. I once wore a uniform for this country, and I will be damned if I will be willingly turned into a ‘slave’ by this president, or any other president. This is wrong, it is ILLEGAL, and it is AMORAL for this fraud to stand at a podium and tell us that this is his plan and we are going to go along with it.

    We’ll see about that, Obama. We shall see about that!

  13. Jan Rogozinski

    Read the Constitution.

    It was correction quoted in the article. “No person shall be deprived of life, liberty or property without due process of law.”

    It clearly says “person” and not citizen. Just as Magna Carta says “man” and not “subject.”

    Just because someone is, say, French, the US government cannot throw him in jail without a trial and torture him.

    Why do fake “conservatives” hate the US Constitution? Ever time I here a Republican say, “Obama has to appoint some tone to the supreme court who is a strict constructionist who will follow the letter of the law,” I vomit.

    After eight years of Bush using the the Constitution as toilet paper, that statement is absurd– the worst hypocrisy possible.

  14. Dale A. Sender

    The reason that conservatives hate the U.S. Constitution, is that they are so very into being subjugated and dictated to themselves, that any other way of life to them is repugnant and abstract. They can’t conceive of a nation where the government doesn’t have the right to stick it’s knee in your back and force you at gunpoint to do something you don’t want to do. They certainly can’t support a nation governed by Rule Of Law, or the U.S. Constitution or the Bill of Rights, or the Magna Carta, because their concept of rule of law is a flexible, “end justifies the means” kind of lawlessness that says; “we can do anything we want to you because WE MAKE THE RULES AND YOU DO NOT..”

    if the G.O.P., and truly, the DINOCRATS, had their way, they’d be installing videocams in our bedrooms, living rooms, and microphones everywhere so they can conduct 4th. and 14th. amendment breaches to our security and privacy whenever they want. To them, an authoritarian, dominionist, theocratic “you better bow to our god” crusading dictatorship, is what they want, and it’s not so unlike the sharia law that the U.S. invented Taliban have imposed in the middle east.

    The conservatives are no more ‘conservative’ than I am a being from another planet, and the real conservatives lost their party to these right wing theocratic assholes a very very long time ago, just like we progressives lost our party to the blue dog republican lite looters and rapists who occupy the other side of the aisle and pretend to be an opposition party. In reality, both of these gangs of murderers and torturers serve only one leader, and that’s the ‘K-Street’ Lobbying interests and the payola and cash. In a lot of ways, you could say that the corruption is so endemic and widespread, that it cannot, at this stage of the game, be undone, because every single member of the house and senate would oppose any legislation that would make it impossible to take payola from the lobbyists.

    but I see your point. Why do the alleged ‘conservatives’ hate the U.S. Constitution? I think the thing they hate the most about it, is that is is, when applied properly, an ‘equalizing force’ and they don’t want equal rights, they want to maintain the strangle hold on power at all costs, even if it means making the United States into a theocratic dictatorship. That’s precisely what they had under the last puppet, George W. Bush, and that’s what they hope to achieve in 2012, with another Bush bastard, Jeb, running for the presidency, if there’s a country left in 2012, which is extremely questionable at this point in time due to their destroying it out from underneath all of the ‘rest’ of us.

    Conservatives? They’re jack booted nazi thugs, not Conservatives.

  15. Glennmcgahee

    Its really funny that i am reading about the demonization of Bush and Cheney still in regards to our unending war against Terror and thwe policies accompanying that. The Dems were elected as the majority to Congress in 2006. I was one of them, a Democrat. Now, we have a democrat as President and we hold both houses of Congress. Yet, what has “changed”? Sure, lets go back and charge Cheney and Bush with War Crimes and breaches of the Constitution. But then lets begin the charges against the current party in power and this administration as well. We have been co-opted by a cabal. The same policies continue, only under a different brand. The sad part is this particular administration can do no wrong in some people’s eyes as they look the other way. I think this is worse and even more dangerous than we had from the previous administration. They said what the believed, we knew what we were up against and planned to right the wrongs. The Obama people say its no longer wrong since their man is doing it although its the very same, in some cases worse. It frightens me.

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