04/22/10
by Jonathan Hafetz
co-editor, The Guantanamo Lawyers: Inside a Prison Outside the Law (NYU Press)
Hafetz looks at news of reported rift in US counter-terror policy:
The New York Times recently reported on a “deep divide” on counter-terrorism policy among senior Obama administration lawyers. But while there may be some disagreement at the margins, the real story is the absence of any real division on the most fundamental issues surrounding Guantánamo and U.S. detention policy. In fact, if accurate, the recent news of a “rift” actually suggests a troubling consensus on continuing essential components of Bush’s post-9/11 policies.
President Obama has taken some significant steps in the right direction. Upon taking office, he announced that he was ordering the closure of the Guantánamo detention center within a year. That followed his inaugural address in which he told the American people that, “As for our common defense, we reject as false the choice between our safety and our ideals.” Last April, in an important speech at the National Archives, Obama reminded the country that “the existence of Guantánamo likely created more terrorists around the world than it ever detained.” President Obama also, upon taking office, took steps to ban torture. Together, these moves suggested Obama saw a clear contrast between Bush’s lawless “war on terrorism” and his new, rights-respecting approach to national security.
But, despite these actions, the president’s policies today have produced little actual change. A year after Obama announced he would close Guantanamo, the base remains open and there is no date scheduled for its closure. And while there is no indication that the administration intends to abandon that goal, it plans to continue to hold detainees indefinitely without charge or trial, including on American soil at a prison in Illinois. The Obama administration also continues to defend the extrajudicial detention of hundreds of prisoners at Bagram Air Base in Afghanistan. These prisoners include people seized in Afghanistan as well as prisoners collected in faraway locales – like Thailand – that officials brought to Bagram specifically so as to avoid habeas corpus review. The result: prisoners are held at Bagram, for years, without access to justice or a court, either U.S. or Afghan.
The administration plans to prosecute some detainees in a second-class system of military commissions rather than in the federal criminal courts. Indeed, the administration suggests it may retreat from its earlier decision to prosecute Khaled Sheikh Mohammed -- and four other Guantánamo detainees accused in the 9/11 attacks -- in federal court, even though these courts have, on hundreds of occasions, successfully handled terrorism-related cases without sacrificing due process rights or endangering national security. Such a reversal would represent a catastrophic setback for the rule of law and U.S. security.
To date, no senior lawyers in the Obama administration appear to have questioned the decision to subject suspected terrorists to indefinite military detention or to limit such detention power to a specific country in which U.S. forces are engaged in hostilities. The changes that have been implemented so far have mostly been cosmetic. The government now calls detainees “unprivileged belligerents,” and not “enemy combatants.” Current debate centers on tweaking the contours of the government’s military detention authority: Can an individual be detained indefinitely merely for providing support to al Qaeda? Or, must that support be such that it constitutes “membership” in the organization (whatever “membership” may mean in this context)? Should the asserted justifications for this sweeping new detention power rely on international law even though it does not support it? Worse, some media have reported the administration is paying close attention to proposals from Senator Lindsey Graham that would contemplate instituting indefinite detention policies as part of a political deal to close Guantánamo. This could expand the government’s detention powers in radical and dangerous ways and also make them permanent.
In short, there appears to be a consensus among administration lawyers that the Bush policy of military detention without trial for terrorism suspects captured far from any battlefield should be extended; the “debate,” such as it, concerns solely what legal rationale should be advanced in support of that policy.
Meanwhile, the “war paradigm” from which so many of the evils of Guantánamo flowed -- prolonged arbitrary detention, abusive interrogations, and excessive secrecy -- remains; so too does unprecedented executive power that threatens core constitutional safeguards. The administration—and the nation—gain nothing by trying to fix Guantánamo or recreate Guantánamo in the United States by moving prisoners there to Thomson, Illinois, or another location inside the country. Guantánamo is predicated on the assumption that the United States can and should detain indefinitely people whom it suspects may be dangerous without charging such people with any crime, even if they were picked up far from any active battlefield. This assumption violates the essence of its legal tradition embodied in the Bill of Rights.
Obama inherited a colossal mess. No question about that. And the efforts he has put forth -- like those to close Guantánamo -- have been met with significant obstacles both from within his administration and from Congress. But the administration must not fall victim to these obstacles or to political pressure to continue illegal policies like indefinite detention. It must adhere to constitutional principles and the rule of law, and that means reconstructing files and prosecuting -- in federal criminal courts -- cases in which there is reliable evidence, and repatriating or sending to safe havens detainees against whom no credible evidence exists. That is how a democracy functions.
It is time to turn the page on policies that have been an enormous detriment to our country in terms of our standing in the world, our commitment to upholding our values, and our security. So if reports of a “divide” within the administration meant officials were fighting for these principles, this would be a “divide” worth having. And a fight worth winning. So far though, there is no indication any one is fighting this fight.
Jonathan Hafetz is a staff attorney at the American Civil Liberties Union and Co-editor, The Guantanamo Lawyers - Inside a Prison/Outside the Law (NYU Press).
Tags: Executive Power, incarceration, Jonathan Hafetz, justice, Summary Judgment, Barack Obama
04/02/10
“The legal dimension of Obama -- and however modest, his career as a law professor -- is an essential part of understanding who he is.” – David Remnick
Just Books: The arc of the moral universe is long but bends towards justice. It’s one of Obama’s favorite Martin Luther King statements. How do you think law figures into his understanding the moral universe and the way it moves towards justice?
David Remnick: When we think of the cartoon of Obama’s past, during the Presidential campaign, sometimes the emphasis is overmuch on the three years he spent as a community organizer. And on Saul Alinsky. And the South Side. As if there was something more romantic about creating an image of the past out of these. But, a very, very big part of who Obama is, the way he thinks, his bearing in the world, comes from the fact that after he finishes being a community organizer and finds deep frustrations in that and so goes to law school. For some people, law school is a way of getting a high paying job, a way to advance in the corporate world. In his case, there was a measure of idealism and desire to make law an instrument to do what he could not do as an organizer. The legal dimension of Obama -- and then, however modest his career as a law professor -- is a very important part of understanding who he is.
JB: And yet, his career as a practicing lawyer was very short. He practiced very briefly and then went off to lead Project Vote and to finish his book.
DR: I remember when my parents were trying to convince me – unsuccessfully – to go to law school, they said, “get a law degree, you can do anything!” Remember, Obama says in his autobiography, about going to law school, “I would learn about interest rates, corporate mergers, the legislative process, about the way businesses and banks were put together; how real estate ventures succeeded of failed. I would learn power’s currency in all its intricacy and detail, knowledge that would have compromised me before coming to Chicago, but that I could now bring back to where it was needed, back to Roseland, back to Altgeld; bring it back like Promethean fire.” In other words, he was going to law school, to acquire -- in very idealistic terms -- instruments to be more powerful and more capable of doing what he was interested in doing.
JB: Then of course, you quote Obama as saying that he found the study of law “disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power!”
DR: At law school, some courses were dull; some had a sense of adventure that he appreciated. He studied with Roberto Unger who is a real radical. Obama took two courses with Unger, not one. This is a guy who is in the current Brazilian government and very much to the left. That’s not Obama’s politics, but he was certainly taken up with and fascinated by anything that was out of ordinary contracts and all the rest. Obviously constitutional law was where he lived.
JB: You mention a lot of mentors that Obama had at Harvard. Roberto Unger. Laurence Tribe. Martha Minow. Charles Ogletree. Is there a quality of mind that appealed to Obama?
DR: The primary mentor there is Larry Tribe. And to some degree Martha Minow. These are liberals. Martha is more theoretical and Larry Tribe is more directly involved in constitutional law, and, is probably one of the very best constitutional law and law historians we’ve got. Obama was interested in the radicals, in the Critical Legal Studies people. He was interested, to some degree, in the whole Derek Bell drama, but that isn’t where he lived. That wasn’t his main focus of interest.
JB: His main focus was on Constitutional issues?
DR: Yes. Especially Constitutional issues as they related to racial justice and related to a series of things having to do with civil liberties and equal protection.
JB: Can you talk about what it meant that Obama was the first African-American elected to be editor of the Harvard Law Review?
DR: On a personal level, it meant everything. Here is a guy who was a mediocre high school student in a hotsy-totsy prep school in Hawaii. He was a pretty good, at best, college student at Occidental and Columbia. He was not a break out star. He got into Harvard Law, I think partly, and, I don’t know this for certain, but the admissions people were impressed by his three years as an organizer as well as his academic record. For him, at an institution where everyone thinks they are going to be President of the United States or the head of a corporation or something -- For him to emerge as the elect of the elect, to be the first African-American editor of the Harvard Law Review and to be so young and to be interviewed by The New York Times and every other press organ, to be a first. This gave him the idea that his ambition and his horizons were limitless. That is a real gift.
JB: A colleague read the book and said, “Gosh! This guy was not qualified to be President.” Your book dramatizes how very accelerated was Obama’s dash from the Illinois state legislature to the White House.
DR: It was pretty accelerated. But Abraham Lincoln’s dash to the White House did not have its measure of acceleration. We never know, do we? People come in to the White House after many years in the Senate or the House of Representatives or the Governor’s Office and they turn out to be disastrous. We just don’t know. Was there a leap of faith involved in the fervent support for Obama? You bet. Some of it had to do with the fact that there was such disenchantment – not only with the Bush administration as a predecessor -- but also with the saga, the heavy history Hillary Clinton brought to her campaign. And, by the way, barely lost, so there was a lot of division in the Democratic party.
JB: Okay, but what does it say about the Presidency that someone with as little political experience as Obama had not only makes it into office but may turn out to be an awfully good President? Have we collectively misunderstood the qualifications for Presidential office?
DR: It can’t just be aptitude. Otherwise we’d just put the person in the Presidency who has the highest SAT score. There is some combination of accomplishment, character, intelligence, political intelligence, and good fortune, political fortune. With Obama, many of the skills he has are suited to that office. A lot of the people around him in the Senate when he was deciding to run for Presidency so soon, said to him, “Look at John Kerry, and at any other number of Senators. The longer they stay around here, the more votes they cast, the more compromises they make, the more hidebound and Senatorial they get -- and it hurts them. So that was part of the calculus. That, and the disastrous Bush administration, that and the fact that there were no incumbents or vice presidents in the race.
JB: You talk, in the book, about the academic mentors and the civil rights leaders who inspired Obama. Were there practicing lawyers who were role models?
DR: Judd Miner. Without a doubt, his model in Chicago was Judd Miner. Remember he didn’t practice much law. But his partner, Judd Miner [a liberal advocate who had been Harold Washington’s corporation counsel] was very close to him, hired him and served as a kind of model who did good. And modestly well. Also people on the University of Chicago faculty. Cass Sunstein is close to him.
JB: When you look at Obama and the kind of leader he is, are there elements of his mind or character that strike you as lawyerly?
DR: I’m not a lawyer. My impression of lawyerly may be more cartoonish than you like. What is always said of him is that his habit of mind, in terms of making decisions, is that he has a kind of aggressive listening. He is very, very intent on the deliberative and quiet intake of points of view, whether its opposing points of views on the economy and Afghanistan or all the big issues he’s got to deal with. And his demeanor is pretty lawyerly. It’s analytical. Despite churchly rhetoric that gets into his campaign speeches sometimes, this is a very analytic guy. He is not a hot personality He is a pretty cool one. If anything that foreign leaders complain about him – and not just Bebe Netanyu, but lots of leaders – complain that he is not Clintonian in his embrace. He is distant. Diffident.
JB: Leaders complain about this? They want more heat?
DR: They want him to show the love!
JB: How do you understand Obama differently than you did before you began writing this book?
DR: A number of ways. You commented on experience. No doubt that on paper, he is one of the less experienced, in résumé terms, to ascend to the Presidency. What is his appeal? I was interested not only in understanding his story in a biographical sense, but in understanding his understanding of his own story, and the way he tells it. Obama does something unique in American presidential politics: he writes a memoir before becoming a politician. This story telling, this understanding of his own story, his repeating of it and retailing of it, in the book and the way it becomes a part of political culture, in speeches and interviews and the rest, is very, very important,. It is important in any number of levels. One is the way he universalizes his story. He becomes the guy who can straddle all races, creeds, and points of view. He is the guy who is – forgive me – the bridge, who thinks that ideological division is almost unnecessary, the one who thinks that in fact that evangelicals should become part of the Democratic Party. That is his habit of mind. That’s his is own self-mythmaking. Some is strong. Some may be dubious. But that is very, very much part of his appeal, who he is, and how he projects himself.
JB: This comes across in the book. In fact, it seems you not only documented his story, you re-enforced it.
DR: I hope so. It’s why I spent the whole chapter – I pause in the middle of the narrative when he publishes a book – and sort through the book, in terms of, what is this book? This book comes in a long history of African-American autobiography. It presents a speaker looking for parents, identity, community, purpose. That’s what that Obama’s book is about. In many ways, there are links in that book to Frederick Douglass, Malcolm X, and to a whole literature of African-American autobiography, which is probably the strongest genre of all in African-American literature. It isn’t just by chance that that book had such a powerful effect on Obama, Obama’s career and Obama’s self projection as a politician.
JB: Can we talk about mechanics of writing this book? How could you edit a weekly magazine, read so much history, travel to Chicago, Hawaii, interview hundreds of people, and put it all together.
DR: I have an indulgent family and terrible capacity for coffee. Do you know the Yiddish word: Sitzfleisch? I have some of that. And I’ve only done it once in twelve years of being the editor of the magazine, so maybe it was stored up energy. I don’t know. I didn’t have researchers. It wasn’t like Santa’s workshop.
JB: Was Obama interested in the project?
DR: I think Obama has other things on his mind. I spent some time with him. That’s not the key to the book. Interviews with heads of state, in my experience – whether Gorbachev or Obama – once they are in office, they are very, very careful, if they are any good. Only a very sloppy head of state gives what journalists call a “good interview.” Obama had given zillions of interviews. To run for president is nothing if not a self-revealing process. I hope I give due credit in acknowledgments, and in the text, to others who banged on that door before.
Tags: David Remnick, Executive Power, Harvard Law Review, law school, Presidents, Barack Obama, Author Talk
04/01/10
by Jeff Shesol
Supreme Power began, as many books do, as a nagging question.
The Court-packing fight is one of those historical events that gets mentioned frequently and yet, despite its significance, is never really explained. For all the continuing fascination with FDR—for all the books on his early years, his illness, his domestic life, and his leadership through depression and war—his conflict with the Court has received scant attention, even in ambitious, full-scale biographies. The Court fight is usually reduced to a neat, pat parable of presidential overreach, of second-term hubris.
That portrayal, for me, raised more questions than it answered. Is it really enough just to say that Roosevelt was feeling arrogant after his landslide re-election in 1936 and lost his head, deciding to strike back at a Court that had been overturning the New Deal? I didn’t think so; but when I began this project five years ago, I was at a loss to explain how Franklin Roosevelt, described at the time as “the greatest politician ever to be placed within a human skin,” did something as apparently radical and self-destructive as proposing to pack the Court. What drove FDR to make the biggest political miscalculation of his life? That was the mystery that drew me in.
There were other enduring questions at the heart of the story. Most significantly, what led the Court to change course—to make the “switch in time that saved nine”—in the middle of the fight and start upholding the New Deal? Was the Court coerced into endorsing FDR’s programs? Did Justice Owen Roberts—the deciding vote—wilt in the heat generated by the Court plan? Or was his evolution self-directed, as some historians suggest? And finally, what led Congress to reject the Court-packing plan and defy FDR—after four years in which Democrats had gone along with virtually everything he had proposed?
Answering these questions, I came to believe, is essential to understanding FDR and his times. In the years before World War II, Roosevelt’s battle with the Court’s conservative justices was the defining conflict of his political life. He and the so-called “Four Horsemen” were the chief combatants in the greatest constitutional crisis since Reconstruction. The nation in 1937 was at a crossroads, poised uncomfortably between past and future, and between conflicting notions of the Constitution: one fixed, the other fluid. The Court majority’s momentous shift from a last-ditch defense of property rights to an embrace of emergent social and economic rights began in this moment—in the crucible of its conflict with Roosevelt.
The answers also tell us something about our own times.
Of course, I didn’t write Supreme Power with any knowledge that President Obama, like President Roosevelt, would rebuke the Court in a State of the Union address, or that the centerpiece of Obama’s legislative agenda, like Roosevelt’s, would face an immediate assault in the nation’s courtrooms. But I did write the book in full awareness that the battlefield of FDR’s Court fight is still—is always—contested ground.
The questions at the core of Roosevelt’s struggle with the Court are always open questions: about the meaning of the Constitution, the limits of presidential and governmental power, and whether democracy can be made to work in times of economic distress. History may not repeat itself, exactly, but it does have a way of echoing itself—sometimes loudly. Today, I think, is one of those times.
Jeff Shesol is the author of Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud that Defined a Decade. He was deputy chief speechwriter to President Bill Clinton and is a founding partner of West Wing Writers, a speechwriting and communications firm.
Tags: Executive Power, Jeff Shesol, New Deal, Presidents, Franklin Roosevelt, separation of powers, Supreme Court, Buy My Book
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