Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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Military Commissions and Terror Trial Policy

Its official. The Obama detainee policy and legal anti-terror regime is a mess. Its a seemingly dirty mess that highlights the most disappointing area of the Obama presidency. This stuff isnt easy. Still, the Obama administration lacks a clear, cohesive, sound policy for dealing with detainees. The apparent center piece of the legal regime for dealing with accused terrorists is going to be the odious and much derided military commission system. The problems with the use of these commissions are well documented and include the ability to use hearsay as well as tortured information at trial. There is also a lingering question of whether or not, even with these advantages, the government can gain the convictions it seeks.

I believe that the Obama policy regarding these detainees at Gitmo is to get them in a trial and convicted. Clean out the legacy detainees from the Bush era using the military commissions. After this, Obama would seek to establish a new system to deal with future detainees. The Obama administration sees the commissions as the best shot at getting convictions and this is probably the case. However even in instances with great advantage the Government might not prevail. Take for example Ahmed v. Obama .

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases.
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Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.
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What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification the legal standard of government authority to detain that the Obama Administration has laid out, allowed the government to try to prove its case on the lowest standard of proof, conceded that the government was entitled to a presumption that its evidence was authentic, and allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

Now this was in federal court but it shows that even with things like hearsay evidence and every possible advantage the government can fail to make its case against people they assert are terrorists. If we make the basic assumption that the fix isnt in this presents a major problem with even the military commissions--losing.

As it happens the government has a fear of losing in court so great that they wont even risk some people in their special commissions created for the purpose. Even when they granted themselves the biggest home court advantage they could they dont have the confidence to take some of the detainees to trial. What this means is that it is more than possible that the Obama Administration is going to throw the legal principles of our country under a bus for nothing. i mean if they are going to end up going free why not stick to our principles? That at least might be a moral victory.

This fits into my larger overall point that President Obama needs to craft a forward looking system for dealing with terror suspects that holds true to our principles of law and equity. A proposal for system that purports to be such is available here. In short Obama needs to reform this area in the same way he is looking at health care, student loans etc. This is an institutional problem and it needs an institutional and systemic solution. As it currently stands the Obama administration seems to be heading backwards in terms of reform as it relies on the flawed philosophies and justification of the Bush years. Obama needs something new. Otherwise, we are stuck with a system little changed from Bush where the only difference is that instead of holding detainees indefinitely at Gitmo we hold them indefinitely in Fort Leavenworth or Pelican Bay.

The scary truth for the Obama administration is that some of these people simply cannot face any sort of trial where the outcome is unfixed do to royal screw ups with evidence and torture.

Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

Obama cannot face the possibility of allowing people to go free. The administration views this outcome as being either too politically damaging or practically dangerous to allow. So we are left with a bunch of detainees in limbo and a search for some way to keep them in custody without trial.

My own view of how this shakes out is that the Obama admin does put all the legacy detainees tainted by torture and other such issues through a military commission show trial that is even more watered down than we currently see. After getting these convictions A new system comes into place that corrects the criticisms that are constantly leveled at the commissions. The left and civil libertarians view the entire episode as shameful and a low point on par with Korematsu. Obama blames Bush for the need to do this. As it is only the left that is really upset about this stuff Obama is not hurt politically by it and is reelected on the strength of his other domestic accomplishments. America tries to move on and pretend it didnt happen.

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