Saturday, January 23, 2010

Caught Between Scylla and Charybdis

The news about President Obama's Guantanamo decision is not at all surprising. Yet again we see the price of dawdling and delay. Obama's cool, calm, and measured response to, well damn near everything, is a two-edged sword. Sometimes it is a good thing; it prevents the type of "leadership" that a John McCain or a George W. Bush indulges in. When your default is to think from the gut and/or run around like your hair is on fire, bad decisions will happen. McCain campaign was fatally damaged by the gut decisions of Sarah Palin as V.P. and the attempt by the McCain campaign to postpone the first debate. It looked less than an example of deliberate leadership than an example of a poorly run Chinese Fire Drill.

The reverse side of the coin is that sometimes, actually quite often, Obama has a deer-in-the-headlights moment. While he ponders the possibilities and muses about the best possible outcomes, the opposition runs over him like a big rig rolling over a hapless armadillo on a Texas highway. Gitmo is just one example.

Obama was handed an epic mess on Gitmo. It was a shop of horrors. It was illegal on various different fronts. It was a violation of our obligations as laid down by the Geneva Accords. It was a possible violation of the Fourth Amendment and other portions of the Constitution of the United States. The word "possible" is only used because the U.S. Supreme Court has yet to fully weigh in on Gitmo. The Court has had a few chances to step into the breach but has so far has artfully dodged the invitation. As a violation of common sense and morals Gitmo has few equals.

Gitmo was the Bush-Cheney hair-on-fire response to 9/11. Having been caught napping by Osama Bin Laden's not-so-happy campers, W and friends went on epic hunt for Al Qaeda types in the badlands of Afghanistan. The Bushies vacuumed up any male that vaguely resembled a terrorist. The operating parameters where imprison/snatch first, ask questions later.

The second problem with the operation was that the questions were asked much later. Not only was there a problem with the timing, there was a problem with the method. Charming methods like waterboarding, sleep deprivation, vicious dogs, temperature extremes, and others were used. The intelligence gathered by these methods was less than fabulous.

Even worse, the tactics looked very much like torture; this despite a get-out-of-jail memo written by a hack lawyer in the government's employ. The legal reasoning of John Yoo was straight out of opposite land. . Yoo's memo was an argument that owed more the philosophy of the Divine Right of Kings, than to anything based in the constitution. It was a bad faith document designed to cover epic lawlessness, and set up a legal limbo on the island of Cuba.

That legal limbo was incredibly effective. For almost eight years many detainees rotted in prison, with absolutely no legal recourse to speak of. Bush was able to run out the legal clock, and hand over Gitmo, as is, with no warranty, to Barack Obama. Candidate Obama thought he had the solution to the clunker he was given; President Obama soon discovered that there was no such easy solution.

The major problem for the new President was that some of the detainees were honest-to-goodness bad guys. They were men whose whole reason for being was to harm the government of the United States of America, and its citizens. They could not just be set loose to cause grave harm. Thanks to Bush and Cheney, they could not be tried either. No self-respecting court in the land would hear the case. Unlike John Yoo, real lawyers know what constitutes torture; they know what constituted a perversion of justice. They would have no choice to dismiss the charges, with extreme prejudice. They would have no choice but to release the detainees due to governmental misconduct.

Such a result would be a disaster. It would release some seriously bad actors into the wild. Who knows what death and mayhem they would be able to commit before we could capture them again? Who knows if they could be captured again? There a lot of lawless places in the world where they could go to ground. So there is a legitimate concern for not letting them go—the protection of lives.

The legitimate concern of protection of lives also neatly dove-tails with the political protection of Obama's backside. Cynics may claim that this was the primary consideration of the Administration. If it was a consideration, it could not have been played any worse. Obama managed to enrage his left-wing base, and give the right-wing a treasure-trove of brickbats to toss at his head. His cautious and considered deliberations about the prisoners left the door wide open for Republican fear mongering. Gitmo was held up as the only facility that could possibly hold these nefarious, death-dealing, Islamic terrorists (be afraid, be very, very afraid.) Never mind that the Government has plenty of facilities that could securely hold these men. Never mind that it would be rather hard for these men to just blend in with the local populous, even if they managed to escape. Never mind that they would have an even harder time of getting out of the U.S. to join up with their fellows. No, the only place that could hold them was the P.R. disaster and legal black-hole of Gitmo.

Sad to say, but after a year of cautious plodding by the Obama Administration, and their utter failure to provide any pushback to the Right-Wing noise machine, almost 60% of the electorate now believes that Gitmo should remain open. Thus, once more, is the plodding Armadillo of Obama overtaken and crushed, by the tractor-trailer of the Republican Party. Caution and deliberation where overmatched by nimbyism and fear mongering. It only gets worse from here.

It gets worse because the Obama Administration has come up with an epically awful solution to the Gordian Knot that is the detainee issue. The solution that was worked out was to gather some more line, and add some half-hitches, a passel of tug-boat hitches, a Yosemite bowline or two, and nice hang man's noose to the mass. Such is the legal legerdemain that is the Obama proposal. Some detainees will be "tried" in New York City. It will be a wonderful bit of spectacle, worthy of Joe Stalin's efforts during the purges. It will be quite the gathering of Kangaroos. Other detainees will be delivered into the tender mercies of the Military Justice system, as further amended by a railroading construction known as the Military Tribunals. It is a form of justice so suspect, that Military Prosecutors have deserted the process in protest. No small feat that. But the lowest level of this legal hell will be occupied by forty some detainees. They will continue to be held without charge, without possibility of release, without any recourse whatsoever. So much for habeas corpus, so much for the Fifth, Fourth and Eighth Amendments, so much for the rule of law for these men; and so long to our legal protections as well.

This is the ultimate result of not understanding the difference between pragmatism and prudence. It is the result of not understanding the difference between what can be done, and what should be done. It is what happens when you let a convenient compromise cloud an inconvenient truth. Sometimes there is no "third way;" sometimes there is only the devil and the deep blue sea. The strictures of the exclusionary rule of the U.S. Constitution, and the precedent set by the Geneva Accords lead to only one correct solution to the issue of the detainees—release on their own recognacense. But what the law demands, neither domestic security nor political reality can abide. Thus the creation of a totally bogus process that gives the lie to the words "legal proceedings." As it is now constructed, it is a process that only a small coterie of Washington insiders see any value in. Everyone else holds the process in contempt. The right sees no need for the process in the first place. The accused are utterly evil, and should be left to fester in the hole they now find themselves. The guilt of these people is self evident, no trail is needed. The left sees the process as both pointless and evil. The rest of the unwashed middle wonder why the Administration is making such a fetish of a legal procedure that is obviously designed for the sole purpose of convicting the accused. They sympathize with the right wing mostly, if the end result is going to be conviction. "Why bother?" is the question they ask. It is a good question; what exactly is the point of Obama's fastidious procedure? What is the need for this thin white-wash of legal mumbo-jumbo, if the results are preordained? Is this just some pointless bureaucratic exercise so that some nameless Government drones can place a tick mark on some obscure check list? Are we doing this to provide cover for few functionaries deep in the bowels of the National Security Apparatus? Sure looks like it. Sure looks like a typical D.C. exercise in covering posteriors. It sure looks like a pointless, grubby, amoral and ultimately degrading farce.