[Update: Even the mainstream media have begun to make similar arguments that I make in this essay regarding the Supreme Court and Obama's national security decisions. Also, thanks to TalkLeft for initiating a thread on the issue (and graciously linking to this post).]
Obama made an interesting speech today. To summarize, Obama basically said he is doing the right things regarding national security, despite the difficulties, and that he has not abandoned any of his campaign promises. Nuance is key to understanding these promises, I suppose. For those of you who do not trust my sarcastic summary, here is the long version of the President's speech: Obama Speech Transcript.
More of the Same?
Throughout the Democratic primaries, the progressive wing of the party said that Obama was extraordinarily liberal, while Hillary Clinton offered "more of the same" (as Bush). But when Obama embraces "preventive detention," this sounds the same as Bush's maligned practice of "indefinite detention." Obama wants to detain dangerous individuals consistent with the "rule of law," but Bush did the same thing, although he called detainees "enemy combatants." "Enemy combatants" sound "dangerous" to me.
Obama has opted to utilize "kinder, gentler" military tribunals, but, like the Bush version, they will operate under a watered-down version of due process in order to secure easier convictions. As a compromise, Obama could have chosen to follow the stricter procedures contained in the Uniform Code of Military Justice -- which govern the prosecution of military personnel for crimes ranging from sodomy to treason. Instead, he has chosen to "stay the course" with slight modifications.
Obama reports that he will reform Bush's tribunals by giving defendants greater freedom to pick their own lawyers and by requiring the government to demonstrate the reliability of hearsay evidence. These reforms, however, will unlikely represent a substantial departure from practices during the Bush administration. Military courts receive so much criticism in part because one entity serves as police, prosecutor, judge, and jury. So, even if Obama changes the hearsay rule, the military (as judge) will still decide whether the military (as prosecutor) can introduce hearsay evidence collected by the military or the CIA (as police officer) for use in a military proceeding (a criminal prosecution). Focusing only on the promise to reform the hearsay rule and not the process for evaluating its reliability is a mere distraction.
Supreme Court Implications
Civil liberties organizations have already promised to file lawsuits challenging the military courts. In two different rulings, the Supreme Court invalidated the procedures used in Bush's military tribunals. Potentially, the Court could rule against Obama's courts, especially if he chooses a "true" liberal to replace Justice Souter.
I suspect that for this and other reasons, Obama will aim for the middle and for familiarity. This standard works against Judge Sonia Sotomayor (whom people have labeled as a leftist without reading her opinions) and Professor Pam Karlan (who is a bona fide leftist).
Elena Kagan, however, is probably the presumptive front runner. She is the most moderate of the individuals on the reported short list. More importantly, Kagan has already embraced the expansive notion of indefinite (sorry: "preventive") detention that Obama says he will utilize. Furthermore, she is a known quantity to President Obama, and he undoubtedly asked her many questions about law and national security before selecting her to become the Solicitor General. Also, after Souter announced his retirement, several leading Democrats floated a script that discouraged the selection of a sitting judge. Kagan is the the most popular front runner who is not a judge. Although this analysis sounds logical, I will decline to make a formal prediction. There are clearly many factors at stake.
Ironically, Obama, who ran as the antiwar candidate, is now the "war" president. He is the commander-in-chief in two ongoing offenses, including one in which he has authorized a "surge." As proof that his antiwar rhetoric is a distant memory, Obama has delivered a speech to justify his Bush-esque national security policy against liberal (and Cheney's) criticism in a building that houses the Declaration of Independence and the Bill of Rights, which rank among the most enduring of American symbols. This is a long road from the flag pin controversy.
Finally, I will leave readers with some "oldies but goodies" from Dissenting Justice. These articles argue that the Left set itself up for disappointment with its irrational exuberance surrounding Obama. He is, as Reverend Wright accurately stated during the campaign, a politician. All presidents before him were politicians as well. I was stunned that liberals refused to see this. So, to the formerly effusive and uncritical Left: I told you so. To everyone else, enjoy the articles.
Latest analysis on Dissenting Justice:
Cutting Through the Rhetoric Regarding Hate Crimes Legislation
Related Readings on Dissenting Justice:
* 2008 Is Not 1964: Why Liberal Mania and Conservative Panic Are Nothing But Melodrama
* Progressives Awaken from Obama-Vegetative State
* Head Explosion at The Nation: Left "Duped" by Its "Own Wishful Thinking"
* From the "Duh" Files: Effusive Political Adoration Does Not Lead to Social Change
* Warning to Progressives: NYT Proclaims Obama Will Govern From Center-Right
* Leftists Finally Realize Obama Is a Moderate; Huffington Post Suddenly Embraces Clinton and Political Center
* The "Left" Responds to Obama's "Centrist" Foreign Policy Team
* Reality Check: Obama's Election Victory Does Not Mean That Era of Race-Based Identity Politics Has Died
* Back Down Memory Lane: A Review of Anti-Clinton Rhetoric by "Progressives" on Daily Kos, Huffington Post, and AlterNet
* Don't Ask, Don't Tell, Don't Hold Your Breath