Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Do not adjust your monitor. This is not a repeat. The Obama administration is defending yet another Bush administration position in the war on terror, arguing that the courts have no jurisdiction over military prisons overseas other than Guantanamo Bay.
The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.
"The hope we all had in President Obama to lead us on a different path has not turned out as we'd hoped," said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. "We all expected better."
The problems is that Bagram, like Guantanamo Bay, has housed innumerable inmates who were entirely innocent and who were subjected to brutal abuse in custody. Like many who were transported to Gitmo, many of the detainees at Bagram, which is located in Afghanistan, were turned in by other Afghanis who were seeking to get financial rewards from the US and they just turned in people they didn't like or people from a different tribe.
The Supreme Court last summer gave al-Qaida and Taliban suspects held at the U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.Three months after the Supreme Court's ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system.
The military has determined that all the detainees at Bagram are "enemy combatants." The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.
After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush's legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.
"They've now embraced the Bush policy that you can create prisons outside the law," said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.
As a purely legal matter, it's probably correct. The courts have never tried to intervene in a prison overseas during wartime, even one ruled by the military. I doubt they will here. But it's morally appalling to claim that any government has the right to hold any person forever, without charges, without any due process or defense whatsoever.
Politics
Comments
Weren't some of Obama's appointments to OLC and elsewhere supposed to be better than this? Whiskey. Tango. Foxtrot.
How long until the revolution?
Posted by: Shawn Smith | February 25, 2009 9:32 AM
I hope that Obama is doing this to get a strong ruling against the practice but I'm really not optimistic at this point.
Posted by: Joshua Zelinsky | February 25, 2009 10:06 AM
Ahem. We are not at war. We are occupying Iraq and we are having military adventures in Afghanistan where we are battling Ronald Reagan's Freedom Fighters. So what we have is peacetime, although the brown people we're killing may fail to grasp the fact.
Posted by: Nattering Nabob of Negativism | February 25, 2009 11:23 AM
bagram, where we pulverized a man's legs so badly they'd have to be amputated... if he'd lived. all in the name of ~freedom and justice and the american way~. if by "closing gitmo", they really meant "transfer everyone to bagram", then nothing has been accomplished.
Posted by: arin | February 25, 2009 11:24 AM
wtf, indeed. It's more than disappointing, it's a friggin outrage.
Posted by: bybelknap, FCD | February 25, 2009 12:23 PM
I knew I should've voted for McCain. Obama needs to be impeached, now.
Posted by: RighteousFury | February 25, 2009 12:28 PM
RighteousFury, do you think McCain would be doing anything different?
Posted by: Jay | February 25, 2009 12:33 PM
I've noticed that every truly disappointing action by the Obama administration has resulted from the continuation of a Bush position on a current court case.
I'm wondering if there is something else at play here, if the teams working these cases are operating at least somewhat under the administration's radar. As important as they are, I get the sense that the major focuses of the administration are elsewhere.
I can't think of another time in US history when a president has inherited quite so many messes from his predecessor.
That doesn't excuse the continuation of Bush policies in these areas. I just don't know if we are seeing the result of long term legal and policy plans in these areas, or simple holding patterns while other, more immediately pressing issues are addressed.
Posted by: kormgar | February 25, 2009 1:18 PM
@kormgar: Thank you for that. That's exactly the point I've been trying to make here for a while. We don't really know what is going on, despite all appearances.
But on a side note, the administration is technically correct: Afghan detainees do not technically have rights under our constitution. That does not excuse mistreatment by their gaolers, but we need to find some way to make this *not* a decision by the President to do the right thing. The people he represents need to make this decision. I still think we should be setting standards until then, but then I don't know anything about how lazy it might make people about future abuses.
Posted by: Ryan Egesdahl | February 25, 2009 1:41 PM
Oh, yes. Let's just impeach the man for choosing to make Congress clean up its own mess. Obama doesn't set policy - Congress does. Obama can suggest many things, but it all depends on what Congress will let him do. Granted, he's supposed to be the Commander in Chief of the troops, but remember that it was Congress who let the previous president get away with all he did. How do we know Obama isn't just making them own up to their responsibility?
You don't see the how your response is the same wildly-swinging politics this country has been living with for the past generation or so? Yes, it's disappointing, but it's not impeachable.
If you "knew you should've voted for McCain," then why didn't you? At least then you'd have some justification for that kind of negativity.
Posted by: Ryan Egesdahl | February 25, 2009 1:51 PM
@ Jay
It doesn't matter what McCain might've done, because that has no impact on what Obama *has* done.
Nothing matters to me more than adherence to the rule of law. So I don't care what else Obama does, for good or for ill. He can reform education, he can fix the economy, he can wean us off of foreign oil, hell, he can even institute universal health care - It. Doesn't. Matter. Because when his administration continues a criminal policy, that by definition makes his a criminal administration.
Posted by: RighteousFury | February 25, 2009 1:53 PM
The rights afforded to criminal defendants in the Constitution are not applicable to people who are being held by the military. The only part of the Constitution that applies is our obligation under the Geneva Conventions to treat these people as Prisoners of War. The Obama administration doesn't have to try them and can ordered these prisoners to be held indefinitely until hostilities in Afghanistan ends. It would be absurd to expect these people to file writs of habeas corpus from Afghanistan or to have American authorities read them their Miranda rights.
Posted by: Ed Burke | February 25, 2009 2:01 PM
That may have been the original intent of the Constitutional structure, but it's not even remotely accurate as a description of contemporary American gov't. Witness Nancy Pelosi, the top officer of one of our branches of Congress, saying "I hope Obama keeps his promise and raises taxes on the wealthy." The leader of the House publicly hoping the President does something he actually has no authority to do--because she knows the reality is that the President has to set the lead for Congress to follow.I ain't saying it's good--in fact I think it's dreadful--but that's how the system works today. To say the president doesn't set policy, in general, is to reveal a fundamental misunderstanding of how our government works.
And to say a president doesn't set policy when the issue, as here, is about (a) the military and (b) defending a past administration's purely executive decisions...well, I don't really have any appropriate words to describe how phenomenally silly that claim is.
I grant you the "it's early and things are happenng fast" argument. But as Ed has repeatedly pointed out, Obama does not have to make a snap decision to change the policies, he just has to ask the court for a fuckin' continuance! so that he has time to decide.
I voted for Obama, knowing full well I'd hate his economic policies, so while I'm dismayed by the bailout bill, I don't feel betrayed, because I knew damn well that's what he was going to do. But this--this is exactly opposite to what he vowed. I voted for him despite my qualms precisely because he said he'd do an about-face from the Bush administration. On this I do feel betrayed. Economics is great to argue, and I care a lot, but it doesn't even compare in importance to the ongoing abuses of executive authority, secrecy in government, and vicious trampling of human rights. I was more than willing to accept what I see as bad economic policies in exchange for an end to the presidential shredding of the Constitution. Instead I get continued disdain for the Constitution and a whole bunch of fucking apologists trying to tell me it's not really that bad.
It is that bad, because it's easy for each president to take the abuses of his predecessor as the baseline, and extend them from there. Bush took the abuse of power farther than any previous president--claiming unlimited executive authority, claiming the authority to surveil citizens without a warrant, and the authority to suspend habeus corpus (yeah, yeah, Lincoln was first, but this ain't no civil war). If Obama does not roll that back, the stage is set for the next president to treat such claims as traditional, as normal.
The danger isn't that we'll become a police state overnight. The danger is that we slide into it slowly, justifying each step along the way, and denouncing as fringe lunatics the people who warn that we're moving ever closer to it.
Posted by: James Hanley | February 25, 2009 2:20 PM
Uhm. Yes it is. Obama can make opening moves, but in the end Congress lets him do it. That's the principle of checks and balances, and it does still work that way, even if it's not always used correctly. Every move I have seen so far is a President who is trying to make the Congress check him to restore the balance of power. Even the stimulus bill everyone either praised or blamed Obama for was really the responsibility of Congress; he asked for it - they did not have to give it to him. The fact that he got it was illustrative of political pressures and not the inherent power of the Presidency.
The rest of your argument is nonsense stemming from this most basic understanding of how our government really works. Yes, Obama deserves criticism, and one of the ways that is accomplished is through Congress or the Supreme Court checking him. And that's how it should be.
Posted by: Ryan Egesdahl | February 25, 2009 2:40 PM
From the referenced article:
The "it's early in the Administration" arguments no longer work; I'm beyond disgusted that Obama would not only betray his promises to us, but give such a "fuck you" to the entire world like this.
Posted by: Scott Hanley | February 25, 2009 2:55 PM
Ryan Egesdahl said:
And what do you want Congress to do exactly?
Posted by: Ed Burke | February 25, 2009 3:08 PM
@ James
I'm in total agreement with you. Adherence to the Constitution is by far the most important thing. Nothing compares.
As I mentioned before: Even if Obama's policies end up doing a tremendous amount of good for millions of Americans, the moment he shows a willingness to disregard the Constitution - and by extension, my guaranteed rights as a citizen - that completely nullifies everything else he may have done.
I'll say it right now: my individual rights are absolutely the most important thing in the world. I don't care what else Obama does. He can pass legislation that feeds a hundred million starving orphans. It. Does. Not. Matter. Because a criminal is a criminal is a criminal. And we must not tolerate that at any level of government.
Posted by: RighteousFury | February 25, 2009 3:18 PM
Ryan,
Congress is not a coherent institution because legislators are overwhelmingly focused on constituent interests, so they are overwhelmingly responsive to presidential direction, rather than being the primary source of policy. The president is by far the number one influencer of policy, through agenda-setting, executive orders, submission of legislation, determination of which actions to vigorously defend in court, etc. You're working with an out-of-date model of the system.
If you really think Obama is "trying to make Congress stop him," well...I could hope you were right and wish him success. That's precisely the outcome I'd love to see happen. But I just can't agree that Obama's really implementing a clever strategy of saving the Constitution by violating it. Parsimony requires that I accept the hypothesis that he's not fundamentally different from any other of our recent presidents.
Posted by: James Hanley | February 25, 2009 3:37 PM
James said:
"But this--this is exactly opposite to what he vowed. I voted for him despite my qualms precisely because he said he'd do an about-face from the Bush administration. On this I do feel betrayed"
Hear, hear. Well said, James - your whole post.
I defended Obama in the early weeks, but Ed was right, Obama's actions on these human rights and accountability issues have been disgraceful.
I really hope that there is some clandestine reason that justifies these decisions by Obama, but I just can't see what they could be. This is a bitter pill to swallow. This is not what I voted for. :(
Posted by: Gingerbaker | February 25, 2009 5:18 PM
What James and Gingerbaker said.
I feel like we elected a young Anakin Skywalker, the one expected to reestablish balance in The Force, only to find him slowly turning into Darth Vader before our eyes. I am more nearly an idealist by nature, but becoming a cynic is getting easier all the time.
Ed, you perform an invaluable service by not only recognizing Obama's good works when he does them and praising him for them but for recognizing his betrayals of our trust and condemning him for those with equal force.
We who were Obama's staunchest supporters -- and who still do staunchly support the things he promised -- deserve and need to have our eyes propped open and our faces locked forward to see for ourselves what is actually happening, without recourse to twisted justifications for it. The truth hurts, but we need it. Thank you for helping us to keep us honest with ourselves.
~David D.G.
Posted by: David D.G. | February 25, 2009 6:10 PM
I didn't say Congress was the originator of policy. I said they were the ones who decide the policy. It's a shade of a difference, but it matters. That's the whole reason we have a President in the first place.
No, I'm working with an ideal model of the system. The reason we need a strong President is so the government has direction. The reason we need a strong Congress is so the President doesn't go too far. And the reason we need a strong Judiciary is to make sure everyone's rights are protected. The guys who came up with this were awfully brilliant, weren't they? I advocate a return to what we know works instead of having all three branches constantly bickering amongst themselves.
Be careful with your reasoning. None of what we're disagreeing on are violations of the Constitution. They're horrendous all the same, but our Constitution doesn't cover everything. For instance, it doesn't cover foreign prisoners, especially when they are held outside the United States; we have other laws and treaties for that.
Oh, and you might want to dump the "parsimony" argument. There's no compelling reason to believe parsimony dictates anything about human behavior. This isn't wishful thinking on my part; I've seen this scenario played out many times in many varieties, and I would be surprised to learn that Obama truly supports the position he is taking. Lots of times people in politics take a stance to get a reaction from other people.
Their job of making laws, for one. What else should they be doing? If we need laws that give rights to foreign prisoners held outside the country, then that's what they need to work on.
Posted by: Ryan Egesdahl | February 25, 2009 7:15 PM
It's not criminal. It should be, but it's not. That's the problem. We can't just declare an act criminal because it offends morals; there has to be a law to say it is criminal. This is what is meant by the term "rule of law" when we talk about our government.
*sigh* I'm getting very tired of people not reading carefully before responding.
Read my comment again. And then reread it. Hopefully, you will see that you have missed my point entirely.
Yes, Obama can and should set policy regarding foreign prisoners held by the military outside the country. If you had read carefully enough, you would have seen where I said that.
The problem here is that Obama can tell the military what to do, but it doesn't answer the question of whether those detainees have rights under our legal system. The Geneva Conventions only say that we have to treat prisoners like human beings and that we have to take precautions not to harm civilians. It's a gray area that has to be filled in by the law, not just by the dictates of the President.
And as for defending the past administration's excesses - did it ever occur to you that some of those excesses aren't illegal? They should be, yes, but they aren't; Congress just let them slide. So, how do you get Congress to make an act illegal? Force them into a political position where they have to make laws, that's how. Again, Obama can just stop it from happening (and he should), but that doesn't answer the question of whether those acts were illegal in the first place, and we need that answer.
Sometimes the thing that should be done isn't the right thing to do at the moment.
Posted by: Ryan Egesdahl | February 25, 2009 7:37 PM
And you don't even know how that allegedly ideal system worked. Oh for the good old days, when President Jefferson and Chief Justice Marshall walked hand in hand through fields of flowers on a bright spring day and never bickered. Pure unadulterated hogshit. Congress and the Executive never did have a history of anything but bickering. And what's more, that was essentially the idea of separating the executive from the president--so they could act as a check on each other, which is what you want, which requires endless amounts of bickering.
Wrong.
Clever misstatement of my argument. Obviously parsimony doesn't dictate behavior. And obviously the parsimonious answer is not always right. But the parsimonious answer is nearly always right, in regards to human behavior or anything else because it is a logical argument about probability. Politicians breaking promises is a far more probable event than a president playing a game of "make me stop, Congress, please." We've seen the first one countless times, while to the best of my recollection we've never seen the latter. Yet you want us to believe that the never before observed event is more likely than the observed countless times event. Epic logic fail.Look, I wholly agree with you insofar as you would like Congress to reassert itself against the presidency. But your arguments are internally contradictory, oblivious to the empirical reality of how the federal government functions today, and endowed with a perverse claim that a most improbable event is in fact currently happening, despite a total lack of actual evidence to support that claim.
Posted by: James Hanley | February 25, 2009 8:03 PM
I think those who strongly rebutted Ed's portraying Obama's violations against the constitution several weeks ago that are now regretting their vote should chill. We do well to condemn Obama's actions, but I would encourage us to remain optimistic, yet ever vigilant, that we'll realize a significant sea change back to constitutionalism by the end of his first term. Course I'm a moderate so I can't help but react that way.
James - word of the week!!! (parsimony)
Posted by: Michael Heath | February 25, 2009 9:39 PM
Seriously, this is becoming ridiculous:
I was talking about basics, which *is* how it works, current dynamics aside. I don't think we're disagreeing so much as parsing semantics here. I am just commenting on the way government dynamics are balanced as opposed to the way they were designed, like you were.
Really, pay attention to the text of my argument. I'm not making an argument from ideal systems, and I didn't think you were trying to refute that argument until just now. I was just commenting on the fact that power needs to shift away from the Executive branch, that's all, and throwing in reasons why I think so. There's no reason for you to presume anything more based on what I said.
Before you start assuming what I do and do not know, remember how much you do not know about me - which is just about everything. Where, exactly, did I claim that bickering never happened in government? Or could I have been saying that current bickering is repeated history and that we know how that story ends? You wouldn't know because you didn't ask. For your information, I do at least have a grasp of the basics of American history. I had wonderful professors and took copious notes - and read quite a few journal articles on the subject besides.
Oh, right. Because the concept of the Fourth Amendment hasn't been extended over time by the Supreme Court at all, I suppose. No, wait, it has, sorry. The problem right now is that the Executive branch is making an end-run around the Fourth Amendment by making up circumstances that the Fourth Amendment and all the legal precedent that goes with it doesn't yet cover: the rights of "unlawful enemy combatants." Yes, we may think it's unconstitutional (and I agree with that), but it hasn't been reviewed. Like I said, we live under the rule of law, not the rule of man. The reason we let these things go through procedure is so it's harder to backtrack. Simply having the Executive branch stop what they're doing (wonderful as that would be) would not stop it from happening again. We need laws and judicial review for that.
Only if you're in a position to know all the variables, which any decent psychologist would tell you. You must not know many politicians, or you would know how ridiculous it is to claim that appearances aren't deceiving. And no, I wasn't misstating your argument; I was ridiculing it. Sorry for the misunderstanding.
Seriously, if you think that what we see and hear coming out of Washington is in any way representative of the reality of the situation, you're deluded.
Tautology. Don't presume to know what I have and have not seen. Or have directly manipulated myself, for that matter.
Wait, what did I claim, other than a familiarity with the way people tend to maneuver around each other? Seriously, does anyone actually know how to read around here?
You don't know anything about the probability of events because you're not measuring them. Nobody has, as far as I know. And if you were paying attention, you would have noticed where I said I was offering an alternative interpretation of the facts. You did know that it's possible to argue any position even if you don't believe in it, right?
What's been going on with the comments on this blog lately is that people have been moralizing, complaining, and judging far-off and unknown people. We can't prove intent regardless of the facts, and continuing this idealogical war that has consumed American politics is worse than useless. Why don't we go find out what's going on and put the pressure where it counts instead of claiming to know who is doing what and why?
Posted by: Ryan Egesdahl | February 26, 2009 12:10 AM
Brilliant.
Posted by: JamesHanley | February 26, 2009 8:08 AM
How does that work out without a formal declaration of war in the first place?
Posted by: Dunc | February 26, 2009 8:54 AM
Seriously, if you think that what we see and hear coming out of Washington is in any way representative of the reality of the situation, you're deluded.
So what happened to transparency?
Posted by: windy | February 26, 2009 10:34 AM