Tuesday, May 26, 2009

Obama, Gitmo and the Slippery Slope

Slippery Slope:
Civil Liberties

By Don Rose
Chicago Observer

Politics is always the art of compromise. Barack Obama is a politician. Ergo, Barack Obama is a compromiser.

The term politicians prefer is "pragmatist"--more macho, less namby-pamby.

The question at hand, however, is not what term we use, but what principles are compromised--and what level of compromise is acceptable. Therein lies my concern.

What I am seeing in the president I supported is a history--not quite a pattern--of compromise on civil liberties. This I find not only uncomfortable, but potentially dangerous. I dislike using that cliché about the slippery slope, but it applies.

The immediate issue is preventive detention--or, as he put it last week--"prolonged" detention without trial of certain terror suspects imprisoned in Guantanamo. Essentially, Obama would lock up and throw away the key for about 100 prisoners deemed lethally dangerous-some trained in terrorist tactics.

They would not be brought to trial either because there is insufficient evidence against them or because the evidence is tainted-likely obtained by torture.

Obama, a constitutional law teacher, understands preventive detention is unconstitutional--unlike his predecessor, who used the constitution for toilet paper. Obama therefore says that one man should not make the detention decision for a prisoner, but suggests a process through which a panel of judges or other officials would be involved.

Back in the early '70s congress considered preventive detention as part of a draconian anticrime bill proposed for the District of Columbia, but thought better of it. National security in today's world, however, might make it more palatable.

Let's be clear: Obama is not, as some critics charge, simply reverting to the Cheney-Bush policies he previously condemned. He is introducing a host of constitutional protections for the Gitmo prisoners, which would apply either in criminal trials or the military tribunals he now favors.

Virtually all proceedings against these prisoners would be more fair than anything that transpired in the past six years, but no matter how he dresses it up rhetorically we have a basic constitutional principle at stake. A principle shared by almost all our allies--with the exception of Israel and India.

It's an exceptionally knotty problem because quarantining dangerous actors is a legitimate concern. No one wants these characters roaming free to rejoin terrorist cells. What we must do is find a way to bring them to trial--a way to refine the search for untainted evidence and develop new evidence to make a legitimate case against them, if indeed it is warranted.

We have the legal talent in this country to find a way to protect us from jihadists while respecting the constitution. In the long run, when we're seen violating our own principles it helps our enemies inflame their argument against us and create more terrorists.

Beyond that, I worry about Obama's willingness to elide civil liberties. Back when he was a state senator he dropped his opposition to a censorship measure to be imposed in public libraries in the name of protecting children. Why? Apparently because the bill was backed by State Sen. James Meeks, a Southside colleague whose support he needed on other matters.

In the U.S. Senate he wound up voting for the revised Patriot Act, drawing condemnation from the American Civil Liberties Union--which gives him a "lifetime" senatorial rating of 80 percent.

His most notorious flip during the presidential campaign was voting for the Foreign Intelligence Surveillance Act (FISA), which included immunity for telecom companies that went along with Cheney-Bush in eavesdropping on Americans at home.

Candidate Obama pledged he would vote against the bill if it included telecom immunity, but reversed himself and voted for it. Some make the case that the phone companies were themselves victims of presidential pressure. But apart from letting telecoms off the hook, the bill--now law--expanded and legalized warrantless eavesdropping in violation of the Fourth Amendment. It opened the door to more governmental spying on us all.

Obama recently reversed himself on pledges of transparency by supporting "state secrecy" measures he previously assailed. Later he flipped on releasing torture photos.

Perhaps after review, Attorney General Eric Holder will conclude that those secrecy measures are the bunk. Perhaps the courts will permit publication of the photos and halt preventive detention. Perhaps, after reconsideration, the president will again reverse himself on some questionable measures. He is capable of rethinking issues and changing course in healthy directions as well as flip-flopping negatively.

But that slope still looks mighty slippery to me.

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