Obama v. The Rule Of Law by Fran Korotzer


(Photo: Bud Korotzer / NLN)

“This is not George Bush’s Guantanamo, it is Obama’s Guantanamo. This is not George Bush’s detention scheme, it is Obama’s detention scheme. George Bush is not spying on Americans, President Obama is spying on Americans. George Bush is not keeping men at Guantanamo refusing to release them. Obama is doing that.”

– Vince Warren, Executive Director, Center for Constitutional Rights

“I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

– Michael Ratner, President, Center for Constitutional Rights, writing in Just Left Blog

NEW YORK — On February 17th at Judson Memorial Church in Greenwich Village the Center for Constitutional Rights hosted a meeting to discuss and evaluate the restoration of human rights during Obama’s first year. How far had the Obama Administration come in reversing the Bush legacy of torture, extraordinary renditions, private contractors that abuse human rights, preventive detentions, and the targeted assassinations of individuals, including US citizens, who are perceived to be a threat? Annette Dickerson, CCR Director of Education and Outreach, acted as moderator. She said that the country was awash in feelings of hope for change a year ago while the more politically savvy were cautiously optimistic. The hope was that the imperial presidency – the idea that the president can do whatever he wants – would be over. But this president has retained all those powers. What we would be getting in this forum would be an analysis of how this all relates to the work the CCR is doing and what they are challenging. The 3 speakers were Michael Ratner, President of the CCR, Maria La Hood, a senior staff attorney at the CCR who handled the case of Maher Arar, and Vince Warren, Executive Director of the CCR.


Michael Ratner
(Photo: Bud Korotzer / NLN)

Michael Ratner spoke first. He said that from the opening of Guantanamo they started taking on the fundamental issues of human freedom. They took the first habeas corpus case 8 years ago but there are still 200 people at Guantanamo even though the courts established in 2004 that the people there have habeas corpus rights. It looks like Guantanamo and indefinite detentions are becoming an integral part of the legal system. During the Bush years the center organized a movement of 600 attorneys to work on Guantanamo cases and establish that people could not be tortured, held incommunicado and put away forever. But even when the court calls for their release the Bush, and then the Obama Administration, refuses to release them. He said they had a rough time under Bush but could not say that it was easier under Obama, “not by a long shot.”

“Some of the human rights denials may become a permanent part of the landscape.” We are “a huge national security state where national security trumps rights.” Obama inherited it and Obama is continuing Bush’s policies. He has the same war team in office – headed by Gates. There was hope that torturers would be prosecuted but that isn’t going to happen. He has the same economic team. He has the same national security people, some of whom are tied to torture. There is no hope for a shift, for change, from this administration. Any changes that occur will come from citizen activism and the work done at the CCR. The situation, if anything, is getting worse. For example, Sen., Graham is pushing for legislation for preventive detention – people held without trial – and he wants it done before Guantanamo is closed. In fact, with or without a law we already have preventive detentions. Just look at Guantanamo and Bagram. “We have crossed the Rubicon of human rights and human dignity.”

Adding to this rough year the left has split on the issue of Obama. Some don’t want to “attack” him. But this is not an attack on Obama, “we have to stand for human dignity and freedom.” “Military commissions under Obama are still military commissions.” “Preventive detention is still preventive detention under Obama.”

On the issue of accountability, what is to be done with the torturers? Obama took a peculiar position, “we have to look forward, not backward.” This is a rhetorical device. Cases are always about events of the past. Looking forward means acting in a way that will prevent it from happening again. Ratner said, “Obama, in my view, was quite disingenuous about that.” And getting worse, the investigation of Yoo and Bybee was supposed to be hard hitting but it has been so watered-down that the only thing they have been found guilty of is “bad judgment.”

There has been much debate about what torture consists of. Ratner asked, how can you even touch people you have in custody, “much less waterboard them 183 times, throw them against the wall, attack them with dogs? I just don’t get it.” Cheney was on TV saying that he likes and supports waterboarding and enhanced interrogations. That encouragement of torture will have an affect in every station house in this country. The struggle against torture is bearing more fruit in Europe, especially Spain. There are Spanish nationals who were tortured at Guantanamo. Judge Garzon, known for his work on the Pinochet case, may be on the verge of ordering 20 arrest warrants for torture conspirators in the US. If they go to Europe they will be subject to arrest. And Italy has issued 24 arrest warrants for CIA agents involved in renditions from Italy. Ratner concluded, it has been a difficult 8 years and we have a long struggle ahead.

The next speaker, Maria La Hood, began by discussing the Maher Arar case. In 2002 Arar, a Syrian born Canadian citizen, was coming through JFK Airport on his way back to Canada when he was pulled out of a line by US officials, held for 2 weeks by the US without notifying his family, sent to Jordan where he was tortured, and then sent to Syria where he was kept in an underground grave-like cell and tortured for 10 months. Eventually he was visited by someone from the Canadian Consulate but his captors told him that if he reported that he was being tortured he would be tortured even more. Eventually he broke down and told the Canadians what was being done to him.

The CCR brought his case to the US federal court – they sued the officials responsible and lost the case and then lost the appeal. When “national security” is raised there is no remedy for torture. The court said that rendition doesn’t imply that the prisoner will be tortured. The obvious question raised here is, then why is it being carried out? Further, challenging extraordinary renditions interferes with the separation of powers, the judiciary would be obstructing executive rights, and it interferes with foreign policy, which is strictly the responsibility of the executive branch. Another reason it would not examine the Arar case is because “classified information” was involved. “Classified information”, “state secrets”, “national security” – all end further inquiry. The court said that it was safer not to look at the case than to risk security. This issue will come before the Supreme Court on March 5th and it will be a test of the Obama Administration. Will “state secrets” continue to be used to keep cases from being evaluated by the courts? So far the Holder Department of Justice is making the same assertions as the Bush DOJ made. No judicial review for cases involving state secrets. When the executive makes an assertion to the judiciary it is accepted without review. The judiciary no longer provides a check on executive power. State secrets can be used to hide information that isn’t even classified. The Attorney General doesn’t have to review the secrets. He can rely on the declaration of another department.

When he took office Obama was critical of hiring private contractors but he has increased their use in Afghanistan. Members of congress are trying to limit their use as interrogators but Obama opposes that. Targeted assassinations have also increased under Obama.

Vince Warren, the final speaker, began by flatly stating that there has been no positive changes under Obama with the exception of issues that would not cost him politically, like more women and more transgender appointments. Not to negate their importance, but “this is what passes for progressive change under Obama.” “Health care – stuff they can’t get through now is stuff we don’t even want.” We thought his goals were more similar to ours than any other president, but he didn’t get us there. He has done a bad job.

The CCR is a legal organization so in some ways our hands are tied. We’re working within the system to challenge the system. When we lose in court it is not because our legal work is not sound and it is not because we have forgotten about the people we represent and it is not because the law cannot be a meaningful tool for social change. It is because the judges don’t care that this president has more power than any other president in history. Separation of powers is an important tool to knock down presidential abuse of power. When we go to court and say that the president is overstepping his authority they indicate that the courts are out of the business of stopping the president from doing anything. In case after case, the courts have shown us that the separation of powers doesn’t mean interfering with the president. In an era of “national security” the court won’t step on the president’s toes. In fact, the judiciary believes that it would be violating the separation of powers if they interfered.

Aside from that, he continued, we have the worst Supreme Court in history. There was no fight in congress against Bush’s appointment of extremely conservative judges.

On the issue of resettlement, a considerable number of people at Guantanamo have been cleared for release by the courts but they are still there because there is no place to send them. Some of the Uighurs, a Muslim ethnic group from China, recognized as being completely innocent of any wrong-doing, are still at Guantanamo because no serious efforts are being made to relocate them. The Obama Administration is arguing in court against allowing them to resettle in the US. Warren asked, what is the point of doing habeas corpus litigation if it doesn’t mean that people should then be released? Obama is arguing in court that a positive ruling in habeas corpus litigation does not mean that the prisoner has the right to be released if there are no charges against him.

Guantanamo prisoners have been released to Yemen and there are 90 more people at Guantanamo who were about to be released to Yemen. However, because of the Christmas underwear bomber it was announced that no more prisoners can be released to Yemen. So they remain there.

Warren concluded, “We who believe in freedom cannot be satisfied.” “We can’t get so caught up in our hope for freedom that we forget there’s a fight.” Our role is to push as far as we can in court, in the streets and in congress. It won’t be glamorous or fun. “We see the scenario for exactly what it is.” “This type of change doesn’t happen through asking people nicely in congress. It doesn’t happen through asking people nicely in the courts. This type of change comes from a very, very hard fight.” The CCR will take up this fight.

It was a powerful, informative and distressing presentation. What it all came down to is that we are not being governed by a rule of law. As one speaker said, they can and are doing whatever they want to. It is as if our constitution was written on Etch-A-Sketch. While it is encouraging to know that the CCR will fight for a restoration of the rule of law they cannot win this fight alone and winning will be particularly difficult as long as this country is involved in a continual succession of wars without end. The issues are inextricably linked.

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