I think Glenn Greenwald is correct that Obama has successfully managed to embrace Bush policies while being labeled a "centrist." By appearing to tether him between two "extremes," the administration has won the approval of what has been dubbed the "respectable intellectual center." The problem is that "the respectable intellectual center" makes no policy distinctions: Its opinions are governed entirely by where positions appear to land on an ideological scale. So despite the fact that Obama's military commissions will be virtually indistinguishable from Bush's, (as former Bush OLC lawyer Jack Goldsmith writes, "Suspects tried in Obama military commissions gain relatively little from the Bush baseline") the White House has managed to spin them as some sort of "compromise." Marc Ambinder reported on Friday:
This point has been overlooked in the first round of coverage about President Obama's decision to use military commission tribunals for some of the Gitmo detainees: according to an administration official, most of the remaining 241 detainees will be afford Article III trials -- that is, fully-fledged, regular trials, unless they're released without trial. Some of them might be shunted to a newly-created national security court, if the administration and Congress team up to create one. The remaining detainees -- presumably dangerous folks who the administration wants to detain but who haven't had the right type of evidence accumulated against them -- will be tried by the military. The AP says about 20 military commissions will be held.
Well the Bush administration only charged about 12 or 13 detainees, so only out of context does 20 sound like a compromise. The Bush administration also tried several high-profile terrorists in federal court, including Zacharias Moussaoui and Richard Reid. Should they be remembered as champions of civil liberties? Andrew Sullivan, responding to Ambinder, commented on what he referred to as the "Obama straddle":
I'm much more sympathetic to Obama's compromise than Glenn. Once you remove torture, and allow for real legal defenses, and avoid hearsay, the worst of the Bush-Cheney system is eliminated. And it remains my belief that the conflict with al Qaeda is much more like war than criminal enforcement. Finding a way to provide some of the nimbleness and expedition of war-powers without the inhumane dimension of the Cheney era is not easy. But it strikes me that the president is making a thoughtful effort to get the balance right.
Sullivan, after writing for years about the lawlessness of the Bush administration, accepts the Obama military commissions largely because of a change in style. Let me repeat: There's very little substantive difference here between what Bush did and what Obama is doing. They are changes, Goldsmith writes, in "packaging, argumentation, symbol, and rhetoric."
The "reasonable" position is fast becoming the idea that it's OK for us to deny the right to due process for the "really dangerous" detainees. It's hard to see how this is a "compromise" of any kind -- it's like being sort of pregnant. Either there's due process or there isn't. The military commissions will deny due process to people who may have been implicated through torture or hearsay. Some of them may be genuinely dangerous, but that's not a reason to deny them due process. Doing so is only a "compromise" if you buy the administration's framing that Republicans want to boil terrorists in oil and liberals want to sign them up for ultimate frisbee. Because the instinct of the "respectable intellectual center" is to find whatever position seems to lie between two "extremes" and stick to it, Obama's almost wholesale embrace of Bush counterterrorism policies can be sold as a "compromise." But if you believed the last administration was "extreme" in its assertion of executive power, than this one is too.
-- A. Serwer
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