Civil Liberties in the New Regime
I think you have to admit that the Obama administration legal justification for why they can’t be forced to release innocent Uighur detainees currently held in Guantanamo Bay is pretty clever:
Petitioners’ continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States, under the constitutional exercise of authority by the political Branches, coupled with the unavailability of another country willing to accept them. Because the bar to petitioners’ entry into the United States is constitutionally valid, their resulting harborage at Guantanamo Bay is constitutional as well.
For all I know, this is even right as a matter of law. But as Hilzoy says, it clearly fails the “just do the right thing” test. I know some people who are “disappointed” with the Obama administration’s record on civil liberties. I’m not, frankly, because I don’t think it really makes sense to expect any administration to unilaterally divest itself of the powers that have been amassed by its predecessors.
Civil liberties have to be guarded by the courts and—especially—by Congress. Part of why it’s so problematic for congressional Republicans to be so busy attacking the Obama administration as too hesitant to torture people and so forth is that the natural order of checks and balances is totally turned on its head when the opposition is urging the executive to seize more power and become less transparent. Nobody’s going to wage a tough political battle to give up power.
45 Responses to “Civil Liberties in the New Regime”
Register
RSSLogin
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
June 1st, 2009 at 9:29 am
[...] UPDATE #4: Hizoy and Matt Y [...]
June 1st, 2009 at 9:31 am
I know some people who are “disappointed” with the Obama administration’s record on civil liberties. I’m not, frankly, because I don’t think it really makes sense to expect any administration to unilaterally divest itself of the powers that have been amassed by its predecessors.
Ahhh, yes. Tthe indoctrination of young Yglesias is proceeding exactly as planned…
June 1st, 2009 at 9:38 am
If Obama doesn’t succeed, the terrorists win.
June 1st, 2009 at 9:38 am
Aren’t countries obligated to re-admit their own citizens? Or, in the absence of a passport, are said nations just denying that the prisoners are citizens?
June 1st, 2009 at 9:42 am
Which hardly matters, since it’s clear that the much more important indoctrination of young Obama was complete some time ago.
June 1st, 2009 at 9:49 am
EXACTLY. The sooner the GOP realizes that Cheney-style critiques are both morally wronng and politically insane, the better everyone will be. I would love if the GOP made small-gov like criticisms of Obama’s executive powers…
June 1st, 2009 at 9:57 am
The Uighur situation is like a bad lawschool hypothetical. Which doesn’t mean I have a solution in mind.
June 1st, 2009 at 10:03 am
Not only is it perfectly correct as a matter of law, but it’s resulted in the indefinite detention of plenty of people within the borders of the United States as well–undocumented immigrants who haven’t yet had a deportation hearing, or whose deportation is ordered but can’t be carried out. It would be great if the Uighur detainees brought attention to the broader legal issue of detaining those deemed “inadmissible” (which is the term used even when they’re being held within the US), but I’m not getting my hopes up.
More broadly, of course, this demonstrates just how badly we’ve mucked up both immigration policy and national security policy by using the xenophobic “War On Terror”/”enemy combatant” framework to link them to each other…
June 1st, 2009 at 10:07 am
An excellent point; Bernstein would be proud. When do we get to dial up the Freikorps to maintain executive power?
June 1st, 2009 at 10:07 am
Clever? It sounds down right Bushist.
http://stateofthedivision.blogspot.com/2006/06/guantanamo-like-hell-with-no-justice.html
June 1st, 2009 at 10:14 am
Kind of weird.
A point made repeatedly on this blog is that people in business who do not behave morally should be held to some moral standard, and that the tendency to refuse to call immoral behavior immoral when done by people in, e.g., banking, is harmful to society.
But Obama, who more directly works for you than anyone on Wall Street, is expected to amass as much power as he can, and if there is blame for that, it should go to the Republican minority in Congress.
Barack Obama was a professor of constitutional law at a highly ranked law school. You absolutely should expect him to behave differently than George W. Bush on the issue of amassing power in the Executive branch, and if he does not that is both his fault and beyond disappointing it is a betrayal of the values he created a reasonable expectation that he’d represent in office when he was a candidate.
June 1st, 2009 at 10:17 am
“I don’t think it really makes sense to expect any administration to unilaterally divest itself of the powers that have been amassed by its predecessors.”
one does expect administrations to follow the law.
matt’s nonsensical statement flies in the face of what candidate obama specifically talked about on the campaign trail, where candidate obama specifically repudiated the illegal accumulation of power by the executive branch. and then candidate obama promised that he would not follow in bush’s footsteps.
matt’s logic would have justified both ford and carter simply continuing the watergate abuses that nixon indulged in, solely because tricky dick had been so good at breaking the law and holding as much power as he could.
any new administration – at any level of government – faces choices as they begin to establish their own identity.
do they simply allow certain policies to continue, essentially by doing little or nothing to fight against those policies?
do they actually jump to the opposite side of a policy and fight against the former administration’s position?
or do they actively support the former administration’s positions?
in situations where an administration knows that a former policy is morally, politically, ethically and legally bankrupt, the most reprehensible course is the last one noted.
unfortunately, the obama administration appears committed to pursuing that course in any number of areas.
June 1st, 2009 at 10:30 am
There’s expectations and then there’s expectations. I don’t think that Yglesias is making a normative claim here, he’s just saying that Presidents will do what they can to secure their own power no matter what we have to say about it, which is why there needs to be checks on their power.
June 1st, 2009 at 10:32 am
Damn – it really hurts to have to agree with the paid Radical Right counterbloggers posting on this thread, but they are absolutely correct in this case.
June 1st, 2009 at 10:35 am
Matt: We may have to limit you to Bball and urban policy and ask you to leave civil liberties to Glenn Greenwald and (many?) others more qualified, careful, and thoughtful than you are. (http://www.salon.com/opinion/greenwald/2009/06/01/photos/):
“It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit’s ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU…. But now — obviously anticipating that the Government is likely to lose in court again (.pdf) — Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.
The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman — called The Detainee Photographic Records Protection Act of 2009 — that literally has no purpose other than to allow the government to suppress any “photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.”
What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people? Read the language of the bill; it doesn’t even hide the fact that its only objective is to empower the President to conceal evidence of war crimes.
That this exact scenario is now happening in the U.S. is all the more remarkable given that the President who is demanding these new suppression powers is the same one who repeatedly vowed “to make his administration the most open and transparent in history.”
What makes all of this even worse is that it is part of a broader trend whereby the Government simply retroactively changes the law whenever it decides it does not want to abide by it. For decades, we had laws in place authorizing citizens to sue their telecommunication carriers if the telecoms allowed government spying on their communications in violation of the law, but when it was revealed that the telecoms did exactly this, the Congress simply changed the law retroactively so that it no longer applied. For decades, we had laws imposing civil and criminal liability on government officials who engaged in or authorized torture, but when it was revealed that our government did that, the Congress just retroactively changed the law to protect the torturers. And now that courts have ruled that our decades-old transparency law compels disclosure of this torture evidence, the Congress is just going to retroactively change the law — again — this time to empower the President to suppress that evidence anyway….
Other than creating an illusion of transparency and accountability, what’s the point of having laws that purport to restrict what the Government can do if political officials just retroactively waive those laws whenever they want?
The debate over whether there is value in disclosing these specific photographs is entirely misplaced. That isn’t how open government works. The burden isn’t on citizens to prove that there is value in disclosure. Everything that government does is supposed to be transparent to the public unless there is a compelling reason for secrecy —
Combine all of this with the increasingly disturbing spectacle taking place in a California federal court in the Al-Haramain case — where the Obama DOJ is on the verge of being sanctioned by a federal judge for defying the court’s order to make available documents relating to Bush’s illegal eavesdropping activities — and the infatuation with excessive presidential secrecy, the linchpin of government abuse, appears alive and well in the new administration. Is there really anyone who wants to argue that defiance of a federal court’s order and enacting a new law authorizing suppression of torture evidence — the disclosure of which is compelled both by courts and FOIA — are remotely consistent with anything Obama said he would do, or remotely consistent with what a healthy democratic government would do?”
That last is not a rhetorical question in your case, Matt. Please, read the whole thing. Don’t drink the koolaid. And try to remember that peoples’ lives, our image abroad, and Constitutional protections and the rule of law are at stake.
June 1st, 2009 at 10:40 am
That last part is very true but I hope this isn’t intended to absolve Obama. Obama most certainly could reverse this trend if he really wanted to- which is to say, if he really cared about keeping his campaign promises.
June 1st, 2009 at 10:50 am
Presidents will do what they can to secure their own power
You know, folks, this is nothing but conventional Village wisdom. It is not a freakin’ law of nature. Obama would still have plenty o’ power even if he respected civil liberties. If he has any vision of what this country is supposed to be about he would not preserve ill-gotten, anti-American, unconstitutional presidential powers.
June 1st, 2009 at 10:53 am
I agree that presidents generally don’t make an effort to give up even ill-gained power. The best you can hope for is that they don’t resist being stripped of it.
I don’t see that going on here. I see Obama using his lack of power as a club. This gambit might be to force Congress into codifying the presidential prerogitives Bush arrogated to himself, but I think it is more likely that he is doing it to force Congress into backing down from it’s “No Guantanimo detainees in the US” stance.
It is an embarassment to Obama that he hasn’t been able to close Guantanimo. I believe he wants it closed and wants the prisoners transferred to US facilities. He will then play his cards as strongly as possible to do as he desires with the prisoners, but it will be within a framework that is not as legally nebulous.
June 1st, 2009 at 10:59 am
As far as I can tell, that would mean taking the Uighers out of the Guantanimo Bay detention facility and putting them into Guantanimo Bay, preferably with a boat of some sort.
June 1st, 2009 at 11:13 am
Adam, nice post.
Can anyone explain why Obama seems to be going this route? I really did not detect this penchant for national security…uh, expansiveness when he was campaigning. Some of his other executive decisions have not surprised me as a libertarian conservative, but do any of you see any hints in his previous statements?
June 1st, 2009 at 11:13 am
Presidents will do what they can to secure their own power
Well, Jimmy Carter presided over an era which rolled back presidential powers of surveillance and the like.
And Republicans like Dick Cheney and Donald Rumsfeld, who were members of the previous administration, spent 25 years embittered about this and determined to go back to the Nixon-era rules. And those were the sort of people that Will Allen wanted in office.
June 1st, 2009 at 11:23 am
Tyro makes an excellent point:
Jimmy Carter presided over an era which rolled back presidential powers of surveillance and the like
Its hard to make empirical generalizations about what presidents do given the small n-size problem, but it is even more problematic to generalize from what presidents have done since WWII and simply throw up your hands and say that’s just what president’s do and that’s the way it has to be — especially when, as Tyro points out, there is recent counterexample.
June 1st, 2009 at 11:32 am
OT: Microsoft’s new search engine Bing is really quite good. I urge everyone to try it, if only for the video preview search and superior image search.
June 1st, 2009 at 11:54 am
Aren’t countries obligated to re-admit their own citizens?
Interesting idea. I have no problem with calling it a moral obligation, but as a legal obligation, no, that’s not an obligation now, I think. How would it work, anyways? After a coup, would the new government have to accept people who left? Does it matter if they fled before or after the coup?
June 1st, 2009 at 12:10 pm
The rationale for excluding the Uighurs and the catch 22 they are in sounds exactly like that case a few years back in which an Iranian was stuck for 18 years in DeGaul airport in Paris with no visa and no way to return to Iran without persecution.
The story was made into a movie called the Terminal starring Tom Hanks and Catherine Zeta Jones.
Whether its legal or not, it’s damn bad international politics. If the US isn’t willing to let these guys re-settle in the US then no other country on the planet has any reason to ever take any Guantanamo detainees. Obama needs to lead by example here. If I was president of another country I’d be laughing in Obama’s face re: any request to take detainees.
June 1st, 2009 at 12:12 pm
Aren’t countries obligated to re-admit their own citizens?
Yes. China has not refused to take them. They just don’t want to return to China due to reasonable expectation of persecution. The Chinese consider them terrorists or at least subversives and would no doubt lock them up upon their return.
Therein lies the problem. No one ELSE wants to take them and no one else is obligated.
June 1st, 2009 at 1:03 pm
But as Hilzoy says, it clearly fails the “just do the right thing” test.
Try telling that to the Prime Minister and Central Bank Governor of China when you went them to keep buying Treasuries, so that the American government can proceed with its stimulus programmes. Yep, not going to fly.
This isn’t Barack Obama waffling on Guantanamo; this is him accepting the reality that he cannot afford to gratuitously give the middle finger to important world powers.
The problem, of course, is no one else in their right mind would want to take on these sorts of hot potatoes; who would want a bunch of immigrants skilled only in armed resistance, which would cause diplomatic friction with China? You can essentially count most of the smaller countries out on this.
June 1st, 2009 at 1:04 pm
Yes. China has not refused to take them. They just don’t want to return to China due to reasonable expectation of persecution.
Not really. The Chinese government would prefer that those people don’t ever become their problem again and just rot in a prison somewhere. Part of it, of course, is the expectation of torture, to counter which would cause the Chinese more trouble than is worth, with all the attendant negative publicity and so on. Their rotting in Guantanamo is pretty much the ideal situation for both the U.S. and China right now.
June 1st, 2009 at 1:08 pm
Aren’t countries obligated to re-admit their own citizens?
Actually I got curious so I looked this up. Most countries with normalized relationships with each other have bilateral agreements that require repatriation. I don’t know if we have on with China but I suspect so as it appears this is a pro-forma thing.
However there is no codified international law that requires countries to accept their own citizens. Many international lawyers have argued that it is an implicit right but it is not spelled out anywhere. This comes up frequently in refugee situations where refugees flee war or chaos in their home country then wish to return years later when the government has changed, etc.
June 1st, 2009 at 1:55 pm
Civil liberties have to be guarded by the courts and—especially—by Congress.
No, they have to be guarded especially by the people. The right thing to do would be to grant them political asylum, but that would entail admitting that the Bush administration was suckered into imprisoning without charge a bunch of Uighur and Uzbek dissidents (among others) who happened to be Muslim and pissed off, respectively, the undemocratic leaders of China and Uzbekistan.
If he has any vision of what this country is supposed to be about he would not preserve ill-gotten, anti-American, unconstitutional presidential powers.
Indeed, but he’s not going to do it unless he’s made to feel the squeeze by the people who voted for him. Because the Village isn’t going to make him do it.
June 1st, 2009 at 2:22 pm
“I’m not, frankly, because I don’t think it really makes sense to expect any administration to unilaterally divest itself of the powers that have been amassed by its predecessors.”
So I guess you were surprised, and disappointed, when Obama said he would stop waterboarding. Please, this is pathetic suck-up.
June 1st, 2009 at 2:24 pm
Holy shit, Petey was right. This guy really is a trust-fund scumbag. What a piece of shit.
Basically, Matt Y has been lying for the entire Bush administration about his reasons for opposing them.
June 1st, 2009 at 2:30 pm
Myles, your argument might make sense if you hadn’t defended OBama EVERY FUCKING TIME he does this. At some point, you’re just a hack and an apologist.
June 1st, 2009 at 2:52 pm
So move them to Gitmo base housing instead of the cell block and give them jobs with the landscaping or kitchen crews. Then I will accept that they are freed but excluded from the US.
June 1st, 2009 at 3:09 pm
You can trust Matthew not to stray too far from the herd. When the Iraq War was cool, Matthew thought the evidence was persuasive. When the cool, popular new President devalues civil liberties, Matthew is safely on board.
June 1st, 2009 at 4:17 pm
I don’t think it really makes sense to expect any [friend of the new] administration to unilaterally divest [him]self of the powers that have been amassed . . .
and the Metrics weren’t that great either.
C’mon Matt. You’re better than this.
June 1st, 2009 at 4:23 pm
[...] Yglesias makes a good point about the odd dynamic Republicans are creating on the national security front: Part of why it’s so problematic for congressional Republicans to be so busy attacking the Obama administration as too hesitant to torture people and so forth is that the natural order of checks and balances is totally turned on its head when the opposition is urging the executive to seize more power and become less transparent. Nobody’s going to wage a tough political battle to give up power. [...]
June 1st, 2009 at 4:41 pm
It is an embarassment to Obama that he hasn’t been able to close Guantanimo. I believe he wants it closed and wants the prisoners transferred to US facilities. He will then play his cards as strongly as possible to do as he desires with the prisoners, but it will be within a framework that is not as legally nebulous.
It’s an embarassment to Obama? He budgeted money to close it and practically the ENTIRE F***ING SENATE voted to refuse giving the money.
Because our wise Senators are worred our Supermax prisons won’t be able to contain the super mutant terrorists even though they already contain a number.
I’m interested in what he will say to the Muslim masses on Thursday. No more invading your countries, but sorry you’re stuck with authoritarian govenrment for the immediate future. Tough luck but that’s the way the ball bounces. No change in this intance.
June 1st, 2009 at 4:45 pm
The rationale for excluding the Uighurs and the catch 22 they are in sounds exactly like that case a few years back in which an Iranian was stuck for 18 years in DeGaul airport in Paris with no visa and no way to return to Iran without persecution.
The story was made into a movie called the Terminal starring Tom Hanks and Catherine Zeta Jones.
Whether its legal or not, it’s damn bad international politics. If the US isn’t willing to let these guys re-settle in the US then no other country on the planet has any reason to ever take any Guantanamo detainees. Obama needs to lead by example here. If I was president of another country I’d be laughing in Obama’s face re: any request to take detainees.
Give us your tired, your poor, … but not your Uighurs… anybody but Uighurs….
June 1st, 2009 at 4:48 pm
If I was Raul Castro’s media advisor, I’d tell him to loudly advertise Cuba’s willingness to accept the Uighurs.
That would be effing brilliant.
June 1st, 2009 at 5:14 pm
Shorter Matt: I’m a sucker. Or I’m not a sucker, but you are for believing Obama’s promises.
So now Matt’s carrying water for Obama despite acknowledging that he’s a sucker.
June 1st, 2009 at 5:21 pm
Actually, the above is truly horrible constitutional analysis as well as Orwellian – the primary activity that needs to be weighed as lawful and constitutional is actually detaining these people – that is the primary action, not a result.
If we have no constitutional right to detain these individuals, they must no longer be detained forthwith, the logistics of releasing them is secondary and must be promptly massaged so as to be in accordance with the primary good.
June 1st, 2009 at 5:32 pm
To my knowledge, “results” are not constitutionally weighed, but rights/powers/activities. What is the primary action to be weighed? Obviously, the power to hold these innocent individuals indefinitely. We do not have the power to do so, it is not constitutional, so that must be the judgement, regardless of how screwed up the logistics are of executing the law/judgement (and the logistics of the situation counsels you on likely a number of unconstitutional steps taken to get to this point), and the Court should quite simply just give the Executive a defined period of time (forthwith) to get it done.
If it means bringing them here to the US, so be it, a congressional law does not trump the unconstitutional violation of the most essential basic rights in this case.
June 1st, 2009 at 6:00 pm
If I was Raul Castro’s media advisor, I’d tell him to loudly advertise Cuba’s willingness to accept the Uighurs.
That would be effing brilliant.
You might want to check out Cuba’s trade figures with China before you call something like that “effing brilliant.” If I recall correctly, Cuba gets invisible subsidies from the Chinese state through various trade preferences. That and the string of Sino-Cuban joint-venture factories that have been set up on the island, manufacturing everything from air conditioners to televisions, again, if I recall correctly.
There isn’t a chance in hell anyone in Cuba would want Chinese prisoners.
June 1st, 2009 at 7:55 pm
They are living in housing, and free to leave. They need a lot of legal help finding a place to go. There is nothing stopping them from applying through INS.