The Triangle

Issue date: 5/29/09 Section: Ed-Op

Media Credit: Olivier Douliery MCT

In the springtime of a new administration, as we know, campaign promises are shed more rapidly than the leaves of autumn. Barack Obama, however, is breaking those actually made as president, and profoundly important ones.

When Obama took his inaugural oath, he proclaimed a new era of openness and of respect for the law. Two critical tokens of his promise were to release the remaining photographs of detainee abuse and torture at Abu Ghraib prison, and to cancel the trial of prisoners at Guantanamo by military tribunals.

Both of these promises have been broken. Obama now says he will not release the photographs. The military tribunals will continue, albeit tweaked to give the appearance of fairness. Bye-bye, openness. Ditto for the rule of law.

And you thought electing a law professor in place of the village idiot was going to make a difference?

Obama's excuse for keeping the remaining Abu Ghraib photographs under lock and key (they'll have to be stamped classified to escape court challenges) is that his senior commanders and advisers have warned him that releasing them could jeopardize American soldiers in the field. In other words, having launched an illegal and immoral war, the documented evidence of its worst abuses would inhibit the further prosecution of that war.

Here's an alternative: why not just stop the war? It is perfectly plain that a devastated Iraq will remain a deadly and chaotic place for years to come, with or without the continued American presence that goads it further. Pictures of tortured Iraqis will not expose our troops to reprisal if they are no longer there. As for the Afghan theater, the Taliban hardly need further incentive to resist us.

Let us stipulate, however, that the argument about jeopardizing troops in the field has merit. Would this argument not have been equally cogent four months ago? If so, why did Obama not consult his advisors before making his promise? Either he convicts himself of insincerity or incompetence. Neither explanation inspires confidence in a national leader.

The same is true of Obama's flip-flop on the military tribunals, and his lagging promise to close Guantanamo. (On Inauguration Day, there were 242 prisoners still held there. Today, that number stands at 241. At this rate of repatriation, the last prisoner should be released by 2090.)

Obama strongly criticized the military tribunals-as did virtually every lawyer in the country not working for the Bush Justice Department-before his election to the Senate. Once a Senator, he voted for the despicable Military Commissions Act of 2006, which relicensed them following the Supreme Court decision in Hamdan v. Rumsfeld that struck down the Bush detention policy. The alternative to the tribunals (apart from releasing the prisoners) is a trial in federal court. The problem with this is that 'evidence' obtained through coercion-i.e., torture-is inadmissible in such a court. Obama now says that prisoners tried in his new and improved military tribunals will have "many" of the same protections as in a civilian court. Many, but not all. So does this mean the trials will be "fairer," but still not fair? Still unfair, but a little less so? The Bush military tribunals were kangaroo courts so patently rigged that even some of their prosecutors objected to them. They followed years of illegal confinement and abuse. So, do we sprinkle a little legal holy water on them at this late date and called them blessed? What a wonderful way for a Harvard J.D. to parse the law!

Continued...

Page 1 of 2 next >

Article Tools