Friday, February 20, 2009

Two Important Terrorism Updates...But You've Heard Them Before

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.
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.


dualdiagnosis said...

I hope I am not the lone progressive who sees this.

You might be.

Darren Lenard Hutchinson said...

Not really. I think it was my own melodrama. I also hope conservatives feel the same way about the "tax protests" going on around the country right now.

dualdiagnosis said...

I haven't seen "tax protests", what I have noticed is that there are people angered by the stimulus package and the implications of the "housing bailout". There have been many conservatives who have been very displeased with the spending ways of GW Bush, those views have been quite common.

I don't recall that Obama voted against any of the massive spending bills while he was Senator.

BB-Idaho said...

Gitmo may follow Geneva protocol now. IMO, it did not earlier. From a pragmatic standpoint, hardcore terrorists need be detained, but from a foreign policy standpoint, we observe that world opinion is affected by places like Bagram, Gitmo, Abu Grhaib, etc. A little transparacy would likely help....

dualdiagnosis said...
This comment has been removed by the author.
Anonymous said...

There is a difference between tax in a lowering of taxes paid..........and in giving people "refunds" of taxes they never paid in the first place. Conservatives who are objecting to policies enacted so far are rejecting the idea of income redistribution not the idea of lowering taxes on those who earn the money. There is nothing inconsistent in that position.

Dr, Ellen said...

Well, for Pete's sake! What else should we expect from the Left? Their very theme song is "but this is different."

JPL17 said...

[O]utside of Ron Paul, I have not seen many conservatives criticize other conservatives for not taking Bush to task on his extravagant fiscal policies.

Then you haven't been paying attention. Countless conservatives, including prominent ones like George Will, Mark Levin, Rush Limbaugh and Sean Hannity, have been criticizing Bush for years over his spending.

Darren Lenard Hutchinson said...

Anonymous - you are distorting the content of the tax protests. There are a lot of people who pay taxes who are getting relief (e.g., the "middle class"), and there are a lot of people who pay taxes who will not get anything in return.

Darren Lenard Hutchinson said...

JPL - you listed "several" conservatives who were angry with Bush over spending. I could list the same number of progressives who are angry with Obama. The general point: neither camp has a spotless record for consistency.

Darren Lenard Hutchinson said...

BB-Idaho - not much has changed in terms of GITMO in order to say that it "now" follows the Geneva Conventions. I suspect a review under the Bush administration would have reached the same conclusion. On the ground, the same people are running the place.

dualdiagnosis said...
This comment has been removed by the author.
dualdiagnosis said...

DLH- Did you see this at Insta?-

Congressman Jerry McNerney (D-Pleasanton) hosted “Congress at your Corner” from 9:30 to 10:30 this morning.

He told me that he thought tax rates should go up for the very rich and that the top marginal tax rate should be 90%. I couldn’t believe what I was hearing, so I asked in a voice that many in the room could hear if he really meant 90%, and he said yes. Several people asked me after my turn was over if they heard correctly what he said, and were amazed when I said yes.

If this is true, then you will see some real tax protests.

Darren Lenard Hutchinson said...

Dualdiagnosis - one person does not make tax policy.

dualdiagnosis said...

No, of course they don't. But what I see when I read this, is a liberal tax agenda that has been given enough of a green light that elected officials from the left are feeling bold enough to voice this.

The signals are all over, and everyday people are seeing them too.

commoncents said...

Great post here!

Would you like a Link Exchange with our new blog COMMON CENTS where we blog about the issues of the day??

Darren Lenard Hutchinson said...

Dualdiagnosis - I would not make much of the comment. It provides for much melodrama, but it just is not indicative of any possible direction for liberal policy. The Democratic Party is as diverse as the Republican Party. There are Republicans who want to criminalize gay sex, make abortion illegal in every case - including rape, incest, and when the woman's life is in danger, and who want to get rid of the tax code (and thus government) altogether. But they are on the extreme side of the party. This person is just on the extreme side of the Democratic Party (and I am not sure he is on a "side" but just on his own).

dualdiagnosis said...


From the WAPO-

Obama to Unveil an Ambitious Budget Plan
President Obama is putting the finishing touches on an ambitious first budget that seeks to cut the federal deficit in half over the next four years, primarily by raising taxes on business and the wealthy and by slashing spending on the wars in Iraq and Afghanistan, administration officials said.

Darren Lenard Hutchinson said...

DD - thanks for the link! I saw the headline in the media section, but didn't get the chance to read it. When I saw the part about slashing the deficit, my reaction was: yeah right. It would take more than even a 90 percent marginal tax rate to accomplish that! Besides, Obama has just cut taxes and said he will not repeal the Bush tax cuts. Something is wrong with this picture.

Tom Grey said...

DLH, you did a good job calling out the hypocrisy of the Left, which hates Bush for Gitmo but loves Obama, with essentially the same Gitmo.

On fringe Reps vs. fringe Dems, you're fooling yourself -- an elected US Representative is no longer fringe. If you can't name a Congressman who favors making all gay sex illegal, you're mixing b.s. with your analysis.

Yeah, there ARE fringe folk who do want to make all gay sex illegal, and who DO get far more media attention than they deserve (crowding out more responsible, mainstream Republican views) -- but opposition to gay sex as equal to hetero marriage is far different than wanting to reinstate anti-gay sex laws.

Rape & incest abortion cases are also different than when the mother's life is in danger -- I doubt you can name any elected Rep who has stated opposition to abortions that risk the mother's life.

If you believe, as I do, that every human being's first instance of being created is conception, than extending human rights to human embryos logically includes those innocent human fetuses that are the result of criminal rapes and incest.

Adoption is thus better than abortion.

If you think 90% tax rates are fringe, what is the non-fringe Dem proposed tax rate?

Darren Lenard Hutchinson said...

Tom Grey - I disagree with your observation that members of the House necessarilyy have mainstream ideologies. That's not true - simply because they represent more localized groups than the Senate. Cynthia McKinney and Barbara Lee are two examples. Lee was the only House member to vote against the war in Afghanistan; she also voted against Bush's funding requests for the Iraq War. Dennis Kucinich has fringe views as well. [Please note: I am not using the term "fringe" in a negative fashion.] These individuals may not have the ability to enact their views - because they work in a mainstream venue - but this does not mean that they are within the ideological mainstream.

Also, when I used the words "Democrats" and "Republicans," I was not limiting this to Congress -- or to elected officials generally. I just meant Democrats or Republicans.

On the "gay sex" issue -- several states banned consensual oral and anal sex between all adults and four banned any sex between same-sex partners until the Supreme Court held that these laws were unconstitutional. This happened in 2003. The case involved a challenge to a Texas law - which the conservative administration defended all the way to the US Supreme Court. I think it's a fringe view -- but it's a view that was defended heavily just a short time ago. Perhaps you're right in thinking that everyone has moved on. I wouldn't bet on it.

As for deciding whether gay and hetersexual sex are "equal," I cannot imagine what type of legislation would require people to make such a judgment call. Besides, only bisexual people can really comment on that, right?

Abortion is a tough issue, and I respect your opinion on it. I do not believe, however, that viewing a fetus as "life" settles the problem. If that's the case, then exceptions for life, health, rape or incest are all very problematic. Why allow a woman to "kill" her child to keep herself alive? Self-defense as a criminal law matter requires that the other person is actively trying to harm you or someone else. The fetus isn't trying to do anything. So, I am not sure that we should recognize a life exception -- if the fetus, is in fact a life. I think this becomes a compromise point for many people.

Of course, another view holds that the woman's autonomy over her own body trump's another "person's" life. By banning abortion, the government forces pregnant women to incubate babies until they can survive outside of their bodies (not to mention going through the childbirth itself). The government doesn't even force us to learn and apply CPR if possible, but sometimes, it seeks to compel women to protect the lives of unborn children.

So - the "fetus is a life" position does not solve the issue because it can either support the pro-life or pro-choice position.
You're right on this point: I cannot name a Republican politician who has disfavored a life exception (not without digging through Google, and I am too tired at the moment). I know many who have disfavored a health exception. And I know Repulblians, who are not public officials, who oppose a life exception.

Finally: what is an example of a nonfringe tax rate? well, the WaPo article that one reader posted said that Obama's budget plan has a 39 percent tax ceiling. So, I guess that's pretty mainstream.

Thanks for posting!

Anonymous said...

You wrote
"Criticism and consistency, rather than partisan defense of "our" candidate, can permit greater accountability. Silence and acquiescence do not."
I agree, and I think the Republicans would be in better shape as a political party had they taken this position. I'm not sure the country would be better off if Republican infighting over the budget had weakened the President when he was trying to get Congress to actually prosecute the war they had quite willingly authorized. I have long disagreed with Bush's profligate spending, but it seemed to be a necessary bribe to the congressional Democrats in order to secure funding for the troops.
From my perspective, I wasn't overlooking big spending by Bush, but accepting that the price of supporting the troops was to suck up my objections to Congressional pork and deal with it after Iraq was stabilized.


Darren Lenard Hutchinson said...

JeanE - I accept the observation of other conservatives: Bush abandoned conservative principles and became fiscally reckless. This is his own fault.

hysperia said...

In Iraq, Abu Ghraib prison has re-opened, under Iraqi control, and this time with plastic flowers and sewing rooms. Space in the prison is needed since the US is handing over thousands of prisoners due to its security agreement with Iraq, which took effect Jan. 1. In the past, Iraqis have been known to mistreat their prisoners, quite possibly in even more vile fashion than the US. Plastic flowers don't stop torture. How will the US justify turning prisoners over to a country that tortures its prisoners? Doubtless, the US will not have to.

Is the US at war with Afghanistan such that it can call military prisons in that country, prisons that are "in theater"? I know the US is at war with terrorism, but terrorism wasn't a state the last time I looked. Is the US "in theater" wherever it finds terrorists? That could be problemmatic. Well, IS problemmatic.

Gary Rosen said...

"If progressives simply wanted to drum Republicans out of power, they have made a mockery of the very values they claim to embrace."

Gee, ya think? It's like Capt. Renault n Casablanca, "I'm shocked, shocked to find there's gambling at Rick's".

Arek Grantham said...


Another reasoned and thoughtful post. As a conservative, you have helped me, for one, to see the error of my ways in identifying *too* closely with a party.

Yes, I have been one of those contorting myself into unnatural positions to defend "my guy". Were it not so, but better late to the light than forever in the dark, eh?
And really, in hindsight, the man I was defending was not even a conservative in some very important ways. Well, you live and learn.

Anyway, after that bit of personal reflection, allow me to say again: well done. Your honesty and consistency of principle is appreciated all the more for being so exceedingly rare these strange days.

Tom Grey said...

Darren, thanks for a fine response, but let me elaborate on our disagreement. I claim that all the views of all Congressmen, even Dennis K. and Ron Paul (who I voted for in 1988), are 'within the mainstream'. And being held by a Congressman is what, for me, defines the limit of mainstream. So Ron, Dennis, and Barbara may have the least popular, boundary mainstream views, but this does allow me to set up a falsifiable test: does someone in Congress advocate that position, yes or no?

When you decide that Dennis or Barbara has a fringe view, you want some other undefined boundary, so it becomes far more subjective. It's fringe, or not, because DLH says so. I don't think that's such a great standard.

several states banned consensual oral and anal sex between all adults and four banned any sex between same-sex partners until the Supreme Court held that these laws were unconstitutional. This happened in 2003.
I don't believe this is true, that some state banned oral sex in 2003. I believe that well before 1960, most states had long standing laws against such sex, and states began unbanning such acts. Thus, by 2003 all but 4 states had recently, positively acted to legalize previously illegal gay sex -- which was then legalized by the USSC discovering such a right in the Constitution. A right I do not see when I read that document, tho I do see the 10th amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

To me, the 10th means that gay sex, like abortion, should be a states law issue -- and that means different laws in different states is OK. It's a states issue, and should be handled by the states.

Yes, I think Roe should be overturned and it, and all marriage and sex issues should be returned to the states to legislate about.

I don't believe you really believe what you wrote about abortion and the life exception. I think it silly to argue for argument's sake on such an over-argued issue -- I'd like you to consider making what you believe is the correct argument clear, and if you want to argue the other side, make it clear you are doing so.

I really respect your attempt to engage the argument.

hysperia said...

Wow. What happened to the subject of this very interesting post in comments?

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