Earlier today, I spoke with Anthony Romero, executive director of the American Civil Liberties Union, who shared his thoughts regarding President Obama‘s speech yesterday and his proposed changes to national security policy, the difference between this and the prior administration, and the ACLU’s plan to challenge some of Obama’s stated policies through the court system.
What do you make of President Obama reaching out to human rights groups before announcing these changes?
It was a welcome gesture, a marked departure from the last president. That this president would both have the command of the issues and a willingness to speak with vocal critics. At the end of the day, I think no one in the room changed their opinion on any one particular issue or policy. And perhaps the consultation was too little too late, but it was in the spirit of giving us the opportunity to weigh in before a speech, and to organize our thoughts and give him some perspective. It would have been preferable to have a more open dialogue before decisions had been made on the military commissions and launching a new preventative detention regime.
Were you assuaged at all by the President’s explanation for reinstating the military commissions?
No. It really is an enormous mistake to continue with the failed military commissions. The mistake that George Bush made in trying to jury rig a legal system and create a new one from whole cloth appears to be the same mistake that president Obama is intent on making. The fact is that these military commissions will never render justice. Because of their failed work over the last eight years, they are essentially radioactive, they lack any credibility. President Obama’s efforts to make them a little more just, provide a little bit more due process, and make them a little less offensive, is not going to carry the ball at the end of the day.
Do intend to challenge the President’s preventive detention policy in court?
Yes. The stated need for a new statutory regime, enacted by Congress and signed by any president that would allow the government to indefinitely detain individuals without charge is a momentous departure from American jurisprudence. Under established American law, we have to charge, convict, then detain, and if a conviction is not received we must release. We have never allowed that system to be tampered with in any significant way. And to now propose a lawful strategy for securing the same indefinite detention powers as George Bush is completely wrongheaded. He might get the process right, but the outcome will be the same.
Are you worried that because Obama plans to draw on statutory authority rather than the “inherent” powers of the executive that the Supreme Court might actually uphold it?
No. Congress has enacted many laws that the Supreme Court has struck down as unconstitutional. This really goes to the heart of the right to due process and unreasonable searches and seizures. I think even with this court we’re likely to prevail. I think it’s especially true that with the majority conservative members of the Supreme Court who are not aligned with Obama’s political ideology, the justices like Sam Alito, Mr. Roberts or Mr. Scalia, might relish it all too much to be able to stick a finger in Obama’s eye. I think it’s a political calculus, where you’ll have strange bedfellows aligned, the conservatives and the liberals. I’m pretty sure that if they proceed down this track, it’s doomed to failure.
