Today, the Obama administration decided to maintain the Bush adminstration's legal position, which asserts that individuals detained at the Bagram Air Force Base near Kabul, Afghanistan do not have a right to seek judicial review of their detention. The Department of Justice argues that, unlike Guantanamo Bay, the base is located in the "theater of war" and this makes judicial review impracticable." Also, the government argues that the Bagram detainees are not entitled to habeas corpus because they are subject to the Military Commissions Act of 2006 -- a statute that Obama denounced.
This military base is not subject to Obama's executive orders which require the review and subsequent closure of Guantanamo Bay. Also, the facility is not a longterm CIA prison which the executive orders also require the government to shutter. Presumably, the government can indefinitely detain individuals at Bagram -- rather than Guantanamo Bay -- without judicial review. Solicitor General Elena Kagan and Attorney General Eric Holder essentially validated this position when they endorsed indefinite detention of terrorism suspects during their confirmation hearings.
Obama's executive orders create a task force to study Guantanamo Bay and then subsequently to close it. Today, the Pentagon, responding to a request by President Obama, released an 85-page report which concludes that the maligned facility complies with the Geneva Convention. During the Bush administration, many individuals in the human rights community passionately disputed this position.
While the study finds that the facility complies with international law, it concludes that some of the more dangerous individuals should now receive play time:
The report recommended some changes, including an increase in group recreation for some of the camp's more dangerous or less compliant prisoners, according to a government official familiar with the study. The report also suggested allowing those prisoners to gather in groups of three or more, said the official, who spoke on condition of anonymity because the report has not officially been released.FINAL WORD
I have written many articles which track the similarities between Bush's and Obama's anti-terrorism policies. For the record, I do not necessarily disagree with some of these practices. For example, I have argued that the government should probably receive wide latitude to invoke the state secrets privilege and that courts should defer to the government's conclusion that a potential item of evidence qualifies for the privilege.
Also, asserting executive authority to do a particular act, does not mandate the use of such power. So, even if the government believes it can detain terrorism suspects indefinitely, this does not mean that it will.
My purpose for engaging this subject arises from my belief that the Left must hold consistent positions and that it must rethink the uncritical approach it took with respect to Obama during the Democratic primaries and the general-election campaign. If McCain (or probably even Clinton) had won the election and began validating Bush's policies, my fellow liberals would condemn him as Bush III.
In order for our arguments to have legitimacy, we must remain consistent or explain why we shift. If progressives now believe that they overreached in condemning Bush, they should make this clear. If progressives simply wanted to drum Republicans out of power, they have made a mockery of the very values they claim to embrace. Criticism and consistency, rather than partisan defense of "our" candidate, can permit greater accountability. Silence and acquiescence do not. I hope I am not the lone progressive who sees this. Ok - that was a melodramatic ending. And for the record, outside of Ron Paul, I have not seen many conservatives criticize other conservatives for not taking Bush to task on his extravagant fiscal policies.