Change you can’t believe in

By Max J. Castro

With the end of the Republican ascendancy, the sunset of the Bush/Cheney era, and the 2008 election of Barack Obama – a politician with as progressive a track record as any of the Democratic nominees with even a remote chance of being elected and a Constitutional scholar to boot – one hoped that the era of Guantánamo, Bagram, kangaroo courts, indefinite detention, and exercises in perverse forms of legal argumentation was finally over. It would mean the end of the so-called war on terrorism which, to paraphrase the words of New Yorker journalist Jane Mayer, had transmuted into a war against the Constitution. Or so we thought.

Give credit to President Obama for coming into office with a big bang. On his first day in office, Obama ordered the detention facility in Guantánamo closed within a year. It was an auspicious beginning that seemed to auger not a new, spruced-up version of the Bush/Cheney approach but a paradigm shift.

Obama’s dramatic inaugural act suggested the potential of a deep rethinking of the overall mindset, and especially the twisted legal and moral assumptions that underlay the previous administration’s misnamed “war on terrorism.” That was a mindset that could contemplate torture as lawful and proper, maybe not even torture if you parsed your words right.

Thankfully, Obama is incapable and unwilling to twist his mind and that of his subordinates and followers to such an extent. In this administration torture is beyond the pale. Yet, as so many historical examples have demonstrated, when serious crimes have been carried out by the state and in the name of the nation, a call to account is required to avoid a repetition or even a reinterpretation.

Yet under this administration, none of those in the previous government who gave the orders to commit universally recognized crimes, including torture and an illegal war of aggression (Iraq) – the latter considered the most serious crime that a state can engage in by the Nuremberg tribunals, which after the end of World War II tried Nazis accused of war crimes and crimes against humanity – have paid any penalty, nor even endured moral reprobation. Indeed, they stand defiant, waiting in the wings, confident of an early return to power.

What happened, alas, on the road to “change we can believe in?” To a large extent, the Obama administration chose continuity over fundamental change, amnesia over justice – in the legal handling of “war on terrorism” detainees especially but in many other areas of foreign and domestic policy as well.

To cite just one egregious example, not even John C. Yoo and Jay S. Bybee, the Bush Justice Department minions who bore direct responsibility for the infamous “torture memos,” which provided preemptive – and specious – legal justifications for torture and abusive and degrading treatment of detainees received even a slap on the wrist. Indeed, today Yoo is professor of law at the University of California at Berkeley. Bybee is now the Honorable Jay S. Bybee, judge of the federal Court of Appeals for the 9^th Circuit.

Then there is their boss, Attorney General Alberto Gonzales who, while serving as White House counsel, came up with the idea, which he suggested to his boss President George W. Bush, to ignore what Gonzales considered a “quaint” vestige of a past time: the Geneva Conventions. The reason Gonzales advised the president to unilaterally declare Taliban and Al Qaeda combatants outside the jurisdiction of the Geneva Conventions is not that the conventions were no longer relevant; indeed, within the administration itself, Secretary of State Colin Powell, among others, argued forcefully against jettisoning the fundamental laws of war.

Rather, the real reason Gonzales urged Bush to thumb his nose at the laws of war is stated clearly in The New York Times “Guide to the Memos on Torture”: to “keep American officials from being exposed to the Federal War Crimes Act, a 1996 law that carries the death penalty.” (http://www.nytimes.com/ref/international/24MEMO-GUIDE.html)

After Gonzales, who like Yoo and Bybee has faced no legal consequences for his actions, had crafted a crude a priori legal justification for war crimes, his boss, President George W. Bush, gladly took the advice and declared in a memo that enemy combatants captured in Afghanistan would not enjoy the protections of the Geneva conventions. In so doing, the president cited the need for “new thinking in the law of war.” This new thinking not only affected Al Qaeda and Taliban fighters it also paved the way for Abu Ghraib and other atrocities. And, evidently, Bush has not faced any adverse legal consequences for his acts. Indeed, the former president has publicly and proudly boasted that he personally ordered water boarding, a form of torture, which is illegal under U.S. and international law. So much for a country of laws.

Perhaps most emblematic of the failure of Obama to change even the location where detainees are held is the fact that Guantánamo is still up and running. Moreover, military commissions rather than federal criminal trials are being used to prosecute alleged Taliban and Al Qaeda prisoners.

Of course, Obama does not deserve the full blame for this state of affairs. For instance, fierce pressure exerted and legislation enacted with the backing of virtually all Republicans and more than a few Democrats in Congress have tied Obama’s hands and prevented him from fulfilling the promise to promptly close Guantánamo.

Yet in many cases the Obama administration has freely opted to continue carrying out or defend, in the courts and the Congress, any number of odious policies inherited from the Bush administration, including the practice of rendition.

Perhaps the closest resemblance to the perverse and wrongheaded form of legal argumentation used by the Bush administration that has taken place under Obama came in the form of a legal brief recently submitted by three senior military attorneys in defense of a military commission’s conviction of a defendant described as “Osama Bin Laden’s media secretary, a video maker” (“Seminole leader demands Obama apology,” The Miami Herald, March 27, 2011). The brief cites as precedent the case of two British subjects who were convicted in military trials and executed by the United States for helping Seminole Indians and escaped slaves who were resisting the 1817-1818 invasion of Florida by then-General, later president, Andrew Jackson.

The military prosecutors in the current case cited the 19^th century case “as legal precedent for the authority of the Guantánamo war court to capture and put on trial foreign men accused of aiding the enemy in another country.” The military lawyers argued that the ill-fated British merchants were duly tried and ordered executed by a military court because they were aiding the unlawful resistance of the Seminoles and some runaway slaves to Jackson’s incursion into Spanish-held Florida.

The absurdity of this argument – Jackson’s invasion was an illegal aggression against another sovereign nation, his motives were to uphold the detestable institution of slavery and to further his genocidal campaign against native Americans (and perhaps to pave the way for an eventual American takeover of Florida from Spain) – is breathtaking. The British men were acting in an absolutely ethical and humanitarian manner. Their trial and execution by a kangaroo military tribunal set up by Jackson was a travesty of justice. That such a precedent could even be considered shows the lengths to which U.S. officials, under Obama as well as under Bush, will go to convict anyone remotely connected with Al Qaeda.

First, they went after Bin Laden’s driver. Now they have convicted Osama’s videographer, and they want the conviction upheld citing as precedent the authority of a military court convened by the author of an illegal aggression, bent on “repossessing” escaped slaves, and later “removing Indians” through a virtual death march known as the “trail of tears.” Who’s next, Bin Laden’s barber?

The delusions of the “war on terrorism” sometimes make fools, knaves, and rogues of the best of us.