Monday, September 28, 2009

Who's Cheering?


The Washington post presents an attack on President Obama and his supporters that is anything but honest:
Mr. Obama Punts . . . And the left cheers as the president embraces what it once decried as a lawless detention scheme.
Note the artful use of the word "lawless" - as in "without a law" - not "unlawful" or "illegal". The unsigned editorial (which fails to identify even a single person who is "cheering" the decision, although if its claims were correct you would expect such cheers to be coming from the likes of Michelle Malkin and Rush Limbaugh) explains,
The Obama administration announced last week that it did not need and would not seek new legislation to govern indefinite detention of some terrorism suspects at the U.S. Naval Base in Guantanamo Bay, Cuba. In so doing, the administration has chosen the politically expedient and intellectually dishonest route.
Let's take a look, then, at the analysis offered by one of the most consistent voices on this issue, Glenn Greenwald:
Regardless of what motivated this, and no matter how bad the current detention scheme is, this development is very positive, and should be considered a victory for those who spent the last four months loudly protesting Obama's proposal. Here's why:

A new preventive detention law would have permanently institutionalized that power, almost certainly applying not only to the "war on Terror" but all future conflicts. It would have endowed preventive detention with the legitimizing force of explicit statutory authority, which it currently lacks. It would have caused preventive detention to ascend to the cherished status of official bipartisan consensus -- and thus, for all practical purposes, been placed off limits from meaningful debate -- as not only the Bush administration and the GOP Congress, but also Obama and the Democratic Congress, would have formally embraced it. It would have created new and far more permissive standards for when an individual could be detained without charges and without trials. And it would have forced Constitutional challenges to begin from scratch, ensuring that current detainees would suffer years and years more imprisonment with no due process.

Beyond that, as a purely practical matter, nothing good -- and plenty of bad -- could come from having Congress write a new detention law. As bad as the Obama administration is on detention issues, the Congress is far worse. Any time the words "Terrorism" or "Al Qaeda" are uttered, they leap to the most extreme and authoritarian measures. Congress is intended to be a check on presidential powers, but each time Terrorism is the issue, the ironic opposite occurs....
In short, Fred Hiatt's editorial board hears the proverbial sound of one hand clapping and interprets it as "cheers". The author pretends he does not understand that the left had concerns about any new law as legitimizing problematic government conduct, and that the reaction to Obama's decision not to continue to pursue the legislation somehow constitutes a hypocritical endorsement of Bush's (their word) lawlessness. This, despite overtly acknowledging that the ACLU had consistently opposed any indefinite detention regime.

An honest editorial might explain what it sees as the elements of a good indefinite detention policy, how the concerns of the left could be addressed within the context of such a law, and why a formal policy would in fact be superior than relying upon existing law and constitutional language, and perhaps even whether the constraint should be on the President's ability to act "lawlessly" rather than positing that we need new legislation to fill every void, real or imagined, in the scope and reach of present federal law.

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