Between May 15, when President Obama announced that he would keep the Bush-era Military Commissions to try enemy combatants, and May 21 when he replied to the opponents of his decision to close Guantanamo, we had an opportunity to judge the temper of this administration on issues of national security and the defense of civil liberties.
Obama's May 21 speech at the National Archives combined a general repudiation of the Bush-Cheney policies with a surprising concession to methods that the former vice president, Dick Cheney, tried to graft onto the Constitution. This approach the Constitution repels as surely as a healthy body rejects poison; for in the Cheney interpretation, the common-law right of prisoners to be charged with a crime and to have due process in challenging the accusation was abridged in cases specified by the executive. Cheney singled out for detention as "enemy combatants" persons suspected of being hard-core terrorists without there being sufficient identification to charge or sufficient evidence to convict them.
We may think ourselves a safe country, but we can hardly be the United States of 1776, of 1865, and of 1945 so long as we retain a power imported by Dick Cheney and his lawyers from the 17th century into the 21st -- the power of government to imprison and keep in jail a person against whom nothing has been proved and nothing charged. It is a bondage as complete as slavery; and like slavery, it can last for life.
Immediately following President Obama's speech on May 21, the former vice president spoke against liberty and due process at the American Enterprise Institute. But the logical order of these speeches was not their chronological order. Obama was giving an answer to earlier charges by Dick Cheney and his allies in Congress and the right-wing mass media; Cheney, meanwhile, was reinforcing the charges and giving them a semblance of coherent or, at least, official formulation. It seems proper therefore to consider Cheney's speech first.
Like many of Dick Cheney's utterances, it was above all a self-vindication. He began with a reminder that his overriding duty after the attacks on the U.S. in September 2001, had been, as he saw it, "not to forget the terrible harm that had been done to America, and not to let 9/11 become the prelude to something much bigger and far worse." Regarding what he calls "our enhanced interrogation program," the former vice president said: "The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do." The first of these statements was not altogether free of anticipatory gloating -- a hint made far more explicit in the last few weeks on right-wing radio. When the next catastrophe comes, they are saying, Obama will be to blame.
It was a low hit; and a gracious politician would have spared it. Cheney's second point, however, about the interrogations being confined to hardened terrorists had an involuntary effect alongside its tactical value. It made one realize just how long the former vice president has lived in a world of his own -- not merely in the isolation bunker under the Naval Observatory which was his preferred residence through much of two terms (while President Bush insisted on no such elaborate precautions). No: in those years and after, Dick Cheney also withdrew from the world of external opinions and information, with a consequent impairment of his cognitive ability to know what other people know. Americans now for example can easily know that Abu Al-Libbi and John Walker Lindh, among others, were tortured yet were by no means high-value detainees. We have also had time to learn that torture is the word other countries (like America before Cheney) have long used as a description of the procedures which he authorized. And so when he says, "to call this a program of torture is to libel the dedicated professionals who have saved American lives, and to cast terrorists and murderers as innocent victims," it is no longer a clever play to the gallery but an easily exposed private dodge. Thousands of Americans are aware today, because John McCain reminded us in 2007, that "Following World War II, war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding."
President Obama did not mean to copy the tenor but he did curiously echo the phraseology of the Bush presidency. Obama said: "my single most important responsibility as President is to keep the American people safe." Such talk about safety rather than liberty and justice, as the paramount value of American life, had almost no history before the Bush-Cheney administration. There can be no doubt that safe was the favorite adjective of George W. Bush, just as protect was his favorite verb. Yet there is not one word in the Constitution about protecting the people. The good of safety is assumed, of course, and the words of the preamble say the constitutional framework will (among its other purposes) "provide for the common defense." Yet that is a purpose for which any government might be formed. The American government is admirable and original not in its ideas about defense but its ideas about liberty and justice. And the president's powers in time of war are so far from the essence of his duty that they are not included in the presidential oath, or even, very prominently, in the enumeration of the powers of his office. The president is required to see that the laws are faithfully executed. In the presidential oath, he swears to do his best "to preserve, protect, and defend the Constitution of the United States." Italics added, and italics, apparently, necessary. The president protects the people by protecting the laws. He does not protect the laws by protecting the "safety" of the people. Indeed, not the safety of all the people, every moment, but the substance of the laws themselves makes the value of the way of life of a free people over time. How odd to forget this. At the National Archives, Barack Obama was speaking in front of a copy of the Constitution itself.
But he told us first about safety: "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." He then did his best to play a part he likes far too much, that of the national healer. He urged Americans to believe that, in ordering the torture and imprisonment of persons whom they had deprived of legal rights, the leaders of the Bush administration may have done bad things but always did them entirely from good motives. "Our government made a series of hasty decisions. And I believe that those decisions were motivated by a sincere desire to protect the American people."
Is this true? And should we sincerely believe it? When we look at the leaders of other countries that have gone wrong -- Argentina, say -- do we assume the leaders could only have acted badly from the most pure and selfless love of the good? This exertion of fellowship flies in the face of honesty and a common knowledge of human nature.
I also believe that -- too often -- our government made decisions based upon fear rather than foresight, and all too often trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, we too often set those principles aside as luxuries that we could no longer afford. And in this season of fear, too many of us -- Democrats and Republicans; politicians, journalists and citizens -- fell silent.
The result, he concluded, was that "we went off course." But: "I have no interest in spending our time re-litigating the policies of the last eight years. I want to solve these problems, and I want to solve them together as Americans."
This casting away an evil of the past by moderately changing the policies and ignoring the crimes of one's predecessor -- this is in fact impossible to do. The reason is that some of the people who took us off course have not yet given up the steering wheels at which they sit, in one sub-cabin or another of the republic. The only way to face the future is to understand the present, and the only way to understand the present is to inquire into the past.
That need not mean the president himself must express an "interest" in "litigating" this or that case. But his actual autonomy in devising a new policy will depend on his success in scouring his administration of the executors of the old; and the old policy is an instrument to which some of its movers are attached by a sinister piety.
President Obama went on to indicate that he would use military commissions only for those who had violated laws of war. Yet we who have captured and imprisoned persons wrongly, and treated them in a way the Geneva Conventions expressly declare to be criminal -- we who thus prosecute, stand also under the accusation of war crimes. President Obama has indicated that his commissions will no longer seek to use torture or hearsay evidence. They will also incorporate stronger protections for a refusal to testify. But such amelioration holds only for the category of prisoners we think we can convict by legitimate means.
President Obama committed himself, in this speech, to hold in indefinite captivity persons the United States does not charge with specific acts, and whom it does not mean to bring to trial. The reason for such indefinite detention can only be that we do not know who the prisoners are, exactly, and therefore do not know what the charges would be; or that we know we have given the prisoners cause to resent us, after their capture if not before. This points to a darker category: persons whom we cannot bring to trial because all of the evidence against them was obtained under torture. These people either are abused but guilty, or if originally innocent, may reliably be supposed full of hatred toward the people and country that did such things to them.
This last is the fifth of Obama's five categories: "those who cannot be prosecuted yet who pose a clear danger to the American people." What species of twilight creature is alluded to here? Someone, it seems, whom we know to be certainly dangerous to the American people but about the danger of whom we cannot possibly open evidence at a trial, or even venture to make specific charges.
Insight into this category of prisoners may be gained from William Glaberson's May 23 article in the New York Times on President Obama's detention plan.
"Some proponents of an indefinite detention system," writes Glaberson, "argue that Guantanamo's remaining 240 detainees include cold-blooded jihadists and perhaps some so warped by their experience in custody that no president would be willing to free them." Note the words so warped by their experience in custody. So once we have ruined them body and soul, with or without tenable initial grounds of suspicion, we grant ourselves the right to go on harming them forever. Set free, they would wreak too sure a vengeance or stand as too glaring a testimony against us. Note well: it is worse, in some ways, to have been innocent than to have been guilty at Guantanamo. The guilty man can at least stand trial. Regarding the innocent, our own guilt is so complete that to prevent its effects we must keep him in prison indefinitely. Thus we compound our crimes before trying the persons we think we can succeed in convicting as war criminals.
The problem Barack Obama has had to face in the strange, almost posthumous, self-defense of Dick Cheney is admittedly unique. Cheney now has adopted in the open a character he showed earlier to those who knew him well: the character of a usurper. His siege of volubility and accusation, after years of silence and self-concealment, points to a moral defect in the Republican Party more broadly, for which it will be hard to find a remedy. They have ceased to understand that legitimacy extends to their opponents as well as to themselves. They do not know what it means to be honorable losers, generous in defeat and proud to be members of a loyal opposition. All their actions out of power move toward the delegitimation of those in power.
"The civic genius of our people," said William James in his Dedication Speech on the St. Gaudens monument of the Civil War,
is its only bulwark, and neither laws nor monuments, neither battle-ships nor public libraries, nor great newspapers nor booming stocks; neither mechanical invention nor political adroitness, nor churches nor universities nor civil service examinations can save us from degeneration if the inner mystery be lost. That mystery, at once the secret and the glory of our English speaking race, consists in nothing but two common habits, two inveterate habits carried into public life,-- habits so homely that they lend themselves to no rhetorical expression, yet habits more precious, perhaps, than any that the human race has gained. They can never be too often pointed out or praised. One of them is the habit of trained and disciplined good temper towards the opposite party when it fairly wins its innings. It was by breaking away from this habit that the Slave States nearly wrecked our Nation. The other is that of fierce and merciless resentment toward every man or set of men who break the public peace. By holding to this habit the free States saved her life.
Neither of these two habits of civic conduct in a democracy was ever learned by Dick Cheney. And what his party once had of them, it lost at some point between the end of the Cold War and the repeal of welfare. The convenient old enemies had dropped from view. All that was left was the principle of enmity itself.
Under the partial but real accommodation of the former vice president by President Obama lies the drama of a collective loss of faith in justice. We are in danger of losing track of the distinction between a suspect and a terrorist. It has already been lost by Harry Reid, who, in a speech of abject capitulation, spoke of the suspects in Guantanamo simply as terrorists. There are, at present, two million prisoners in the United States. A public error of these proportions sets us on the path to forgetting the difference between a suspect and a criminal, and between an accusation and a proof, and forgetting the axiom that a man is innocent until he is proven guilty.
In the week before this Memorial Day, we saw a new president under unseemly attack, trying to catch his balance. He shared some good thoughts at the National Archives. Yet this speech was one more speech by Barack Obama that deferred action. It suggested the comprehension of an enormous wrong which it decided only partly to remedy. And it set several plainly unconstitutional designs on the way to enactment, for no better reason than that the public morale has sunk so low as to expect such action. But the idea of prolonged detention without charge or trial was new. It gave a shock that will last; that should not be absorbed. And the move was unexpected by lawyers with whom the president had conferred just before giving the speech. As Vincent Warren, the executive director of Center for Constitutional Rights, put it in an interview with Amy Goodman:
the idea of detaining people not because they've committed a crime, but because of their general dangerousness or that they may commit a crime in the future: that's something that the documents that President Obama was standing in front of, particularly the Bill of Rights and the Constitution, simply doesn't permit. And when I heard that in his speech, I was deeply, deeply shocked that he would go in that direction.
Let us say it: something is seriously wrong in this administration -- though we are not yet in a position to judge the cause. We do not know who the lawyers are that gave Barack Obama advice that goes against a long career of ostensible commitments. And it is too early yet to say at what point a new president, confused by the depth of his burdens and uncertain how much even now he believes of what he used to say, becomes instead a man we are compelled to see as lacking in convictions. It cannot be a virtue that he sheds the Constitution with a gentler demeanor than George W. Bush.
The former vice president is engaging in a public refusal of the transfer of power. He embodies to perfection his party's failure to learn "the habit of trained and disciplined good temper towards the opposite party when it fairly wins its innings." Yet President Obama is unconsciously abetting that refusal when -- out of fear, or a wish for leverage elsewhere, or a wish to stand in the middle -- he treats justice as a desirable but not an all-important good.
A misjudged statesmanship has allowed Obama to think himself magnanimous when he declines to expose the wrongs he has come to know. The way to right a wrong is not to install a somewhat reformed version of the wrong. People, by that means, may be spared embarrassment, but their instinct for truth will be corrupted. It is a false prudence that supposes justice can come from a compromise between a lawful and a lawless regime. On the contrary, the less you tell of the truth, the more prone your listeners will be to commit the next barbarous act that is proposed to them under the cover of a national emergency or a necessary war.