Civil Liberties Still Under Attack

Glenn Greenwald
Sunday, Jan 31, 2010 07:32 EST
Nostalgia for Bush/Cheney radicalism
By Glenn Greenwald

(updated below)

As has been voluminously documented here, one of the most notable aspects of the first year of the Obama presidency has been how many previously controversial Bush/Cheney policies in the terrorism and civil liberties realms have been embraced. Even Obama's most loyal defenders often acknowledge that, as Michael Tomasky recently put it, "the civil liberties area has been [Obama's] worst. This is the one area in which the president's actions don't remotely match the candidate's promises." From indefinite detention and renditions to denial of habeas rights, from military commissions and secrecy obsessions to state secrets abuses, many of the defining Bush/Cheney policies continue unabated under its successor administration.

Despite all that, there is substantial political pressure from all directions for Obama to reverse the very few decisions where he actually deviated from Bush/Cheney radicalism in these areas. In the wake of extreme political pressure, mostly from Democrats, the White House just forced Eric Holder to retreat on his decision to try Khalid Sheikh Mohammed in New York City, and numerous Democrats now appear prepared to join with the GOP to cut-off funding for civilian trials altogether, forcing the administration to try all Terrorists in military commissions or just hold them indefinitely. The administration has created a warped multi-tiered justice system where only a select few even get civilian trials -- those whom they know in advance they can convict -- yet there are growing signs that the President will abandon even that symbolic, piecemeal nod to due process.

Meanwhile, The Washington Post is publishing demands from former Bush CIA and NSA Chief Michael Hayden -- who presided over the blatantly criminal warrantless eavesdropping program -- that Obama must even more closely model his Terrorism policies on Bush's, as though the architects of Bush's illegal policies are our Guiding Lights when deciding what to do now. Even Obama's own top intelligence official criticized the Justice Department's decision to treat Umar Farouk Abdulmutallab as what he is -- a criminal -- and accord him normal due process. And an internal Justice Department investigation which -- under Bush -- had concluded that John Yoo and Jay Bybee committed ethical violations in their authoring of the "torture memos" and should be investigated by their state bars has now, under Obama, reportedly been changed -- whitewashed -- to conclude that they acted appropriately (even if their written opinions exhibited "poor judgment").

In sum, there is clearly a bipartisan and institutional craving for a revival (more accurately: ongoing preservation) of the core premise of Bush/Cheney radicalism: that because we're "at war" with Terrorists, our standard precepts of justice and due process do not apply and, indeed, must be violated. To relieve ourselves of guilt and of the bad lingering taste left from having such discredited and unpopular leadership for eight years, we collectively pretended for a little while to regret the excesses of the Bush/Cheney approach to such matters. But it's now crystal clear that the country, especially its ruling elite, is either too petrified of Terrorism and/or too enamored of the powers which that fear enables to accept any real changes from the policies that were supposedly such a profound violation "of our values." One can only marvel at the consensus outrage generated by the mere notion that we charge people with crimes and give them trials if we want to lock them in a cage for life. Indeed, what was once the most basic and defining American principle -- the State must charge someone with a crime and give them a fair trial in order to imprison them -- has been magically transformed into Leftist extremism.

To see how radical our establishment consensus in this area has become, just consider two facts. First, look at the Terrorism policies of what had previously been the most right-wing administration in America's history: the Reagan administration. In this post yesterday, Larry Johnson does quite a good job of documenting how Terrorism by Islamic radicals had been a greater problem in the 1980s than it is now. There was the 1983 bombing of our Marine barracks in Lebanon, a 1982 and 1984 bombing of Jewish sites in Argentina, numerous plane hijackings, the blowing up of a Pan Am jet, the Achille Lauro seizure, and what the State Department called "a host of spectacular, publicity-grabbing events that ultimately ended in coldblooded murder" (many masterminded by Abu Nidal).

Despite that, read the official policy of the Reagan Administration when it came to treating Terrorists, as articulated by the top Reagan State Department official in charge of Terrorism policies, L. Paul Bremer, in a speech he entitled "Counter-Terrorism: Strategies and Tactics:"

Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy’s most potent tool, the rule of law against them.

It was also Ronald Reagan who signed the Convention Against Torture in 1988 -- after many years of countless, horrific Terrorist attacks -- which not only declared that there are "no exceptional circumstances whatsoever" justifying torture, but also required all signatory countries to "ensure that all acts of torture are offences under its criminal law" and -- and Reagan put it -- "either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." And, of course, even George W. Bush -- at the height of 9/11-induced Terrorism hysteria -- charged attempted shoe bomber Richard Reid with actual crimes and processed him through our civilian courts.

How much clearer evidence can there be of how warped and extremist we've become on these matters? The express policies of the right-wing Ronald Reagan -- "applying the rule of law to terrorists"; delegitimizing Terrorists by treating them as "criminals"; and compelling the criminal prosecution of those who authorize torture -- are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy -- "to use democracy’s most potent tool, the rule of law against" Terrorists -- is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan's policy demanded in all instances and what even Bush did at times -- namely, trials and due process for accused Terrorists -- he is attacked as being "Soft on Terror" by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) -- or even hold them accountable in ways short of criminal proceedings -- is now the hallmark of a Far Leftist Purist. That's how far we've fallen, how extremist our political consensus has become.

Second, consider the company we keep, specifically where our mentality falls on the spectrum that defines the rest of the world. Countries which have been victimized by horrific terrorist attacks over the last several years -- Britain, Spain, India, Indonesia -- have tried and convicted the perpetrators as criminals in their civilian court system, right in their normal courthouses, in the heart of the cities that were the target of the attacks. These countries -- which aren't protected by oceans and (in the case of India and Indonesia) aren't bordered by friendly countries -- didn't invent special military commissions to abridge due process or simply imprison the accused without a trial. They didn't pour water down their throats, freeze them, disorient them with sleep deprivation, or hang them naked from the ceiling. Instead, they followed the Reagan administration's policy for dealing with Terrorists -- "use democracy’s most potent tool, the rule of law against them" -- despite the fact that they had suffered deadly attacks.

By contrast, look at what Libya is doing. The U.S. has, for decades, harshly criticized Libya as one of the most tyrannical and uncivilized regimes on the planet. In 2008, the State Department not only amazingly condemned that country for "torture" (which included such U.S.-embraced methods as "depriving detainees of sleep, food, and water; hanging by the wrists; suspending from a pole inserted between the knees and elbows . . . . threatening with dog attacks"), but also for indefinitely detaining people without trials ("The law stipulates that detainees can be held for investigation after being arrested up to eight days. In practice security services can hold detainees indefinitely. Although the law requires that detainees be informed of the charges against them, it was not enforced in practice. The law states that in order to renew a detention order detainees must be brought before a judicial authority at regular intervals of 30 days, but in practice security services detained persons for indefinite periods without a court order").

Consistent with those abuses, Libya just announced its new policy for how it will treat accused Al Qaeda Terrorists -- a policy that should sound quite familiar to all Americans:

Libya will hold up to 300 al Qaeda members in jail indefinitely after they have completed their prison terms to stop them staging fresh attacks, Libyan leader Muammar Gaddafi said on Thursday.

"These people are heretics. They are followers of (Osama) Bin Laden and Ayman al-Zawahri. They killed a number of civilians and police," Gaddafi told a gathering of his top legislative body, referring to al Qaeda's two global commanders.

"It is a necessity to keep them in prison. They are very dangerous as they are ready to resume killing people in our streets here or travel to Algeria or Egypt or elsewhere to stage attacks," he said in remarks broadcast on state television and monitored in Rabat.

At least Libya seems to be indefinitely imprisoning those who were at one time convicted; the U.S., by contrast, is doing so with regard to detainees who have never been charged, let alone convicted, of anything. Saudi Arabia has a similar policy of simply imprisoning people in the name of Terrorism without trials or due process.

So that's where the American consensus now lies. The practices used by Britain, Spain, India and Indonesia (and the Reagan administration) of treating Terrorists as criminals and convicting them in normal courts -- with due process -- is too fringe Leftist for the United States, which has spent decades sermonizing to the rest of the world about the need for due process and the evils of arbitrary detention. Instead, our political and media establishment demands that we replicate the policies of Libya and Saudi Arabia: simply hold accused Terrorists without trials or, at most, invent special due-process-abridging military tribunals to ensure they are convicted.

George Bush and Dick Cheney ended up as two of the most despised American political leaders of the last 100 years, so our establishment had to pretend that they, too, found their policies to be distasteful and extreme. But that was clearly a pretense. In those very rare instances where Obama and his Attorney General try to deviate, they're accused (including by leading members of their own party) of accommodating "the Far Left" and being "Soft on Terror." The undeniable truth is that our establishment craves Bush/Cheney policies because it is as radical as they are. That one is automatically accused of being too Leftist merely by literally reciting Reagan administration policy on Terrorists (in words if not deeds) -- and that one can be "centrist" only by standing with the due-process-denying practices of Libya and Saudi Arabia -- reflects just how far the American spectrum has regressed.



UPDATE: According to Mitch McConnell, it's not only Ronald Reagan, but also George W. Bush and Dick Cheney, who were too far to the Left when it came to the treatment of accused Terrorists. McConnell said today on CNN that Bush's mistakes were giving civilian trials to some accused Terrorists and releasing too many people from Guantanamo. McConnell likely speaks for the bi-partisan establishment, as he confidently predicts that there are more than enough votes -- from both parties -- for cutting off funds for trying accused Terrorists in civilian courts.

Ronald Reagan and George W. Bush: Far Leftist Civil Libertarian Extremists.

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