[R-G] Obama's Gitmo

[Anthony Fenton]

http://online.wsj.com/article/SB124027091370936935.html

     * OPINION: MAIN STREET
     * APRIL 21, 2009, 8:40 A.M. ET

Obama's Gitmo

     *
       By WILLIAM MCGURN
     *

Helen Thomas: Why is the president blocking habeas corpus from  
prisoners at Bagram? I thought he taught constitutional law. And these  
prisoners have been there . . .

Robert Gibbs: You're incorrect that he taught on constitutional law.

You know we live in interesting times when Helen Thomas is going after  
Barack Obama. Miss Thomas was asking the White House press secretary  
last week why detainees at Bagram Air Base in Afghanistan should not  
have the same right to challenge their detention in federal court that  
last year's Supreme Court ruling in Boumediene v. Bush gave to  
Guantanamo's detainees. All Mr. Gibbs could do was interrupt and  
correct the doyenne of the White House press corps about Mr. Obama's  
class as a law professor.

The precipitate cause of Miss Thomas's question was a ruling earlier  
this month by federal district Judge John Bates. Judge Bates says that  
last year's Supreme Court ruling on Gitmo does apply to Bagram. The  
administration has appealed, saying that giving detainees such rights  
could lead to protracted litigation, disclosure of intelligence  
secrets and harm to American security. The wonderful irony is that, at  
least on the logic, everyone is right.

Start with Judge Bates. The judge is surely correct when he says the  
detainees brought in to Bagram from outside the country are "virtually  
identical" to those held at Guantanamo. He's also correct in asserting  
that the Supreme Court ruled the way it did out of concern "that the  
Executive could move detainees physically beyond the reach of the  
Constitution and detain an individual" at Bagram.

But President Obama's appeal is also right. Though most headlines from  
the past few days have focused on the release of Justice Department  
memos on CIA interrogation, the president's embrace of the Bush  
position on Bagram is far more striking. Mr. Gibbs became tongue-tied  
while trying to explain that stand. But the Justice Department brief  
is absolutely correct in asserting that "there are many legitimate  
reasons, having nothing to do with the intent to evade judicial  
review, why the military might detain an individual in Bagram."

Finally, critics like Miss Thomas also have it right. In a long and  
thorough post called "Obama and habeas corpus -- then and now," Glenn  
Greenwald, a former constitutional law litigator who blogs at  
Salon.com, exposes the gaping contradiction between past Obama  
rhetoric on the inviolability of the right to habeas corpus and the  
new Obama reality. He also quotes Mr. Obama's reaction to Boumediene  
as a "rejection of the Bush administration's attempt to create a legal  
black hole at Guantanamo."

Manifestly, Mr. Greenwald believes that "black hole" is simply moving  
to Bagram. "I wish I could be writing paeans celebrating the  
restoration of the Constitution and the rule of law," he writes. "But  
these actions -- these contradictions between what he said and what he  
is doing, the embrace of the very powers that caused so much anger  
towards Bush/Cheney -- are so blatant, so transparent, so extreme,  
that the only way to avoid noticing them is to purposely shut your  
eyes as tightly as possible and resolve that you don't want to see it,  
or that you're so convinced of his intrinsic Goodness that you'll just  
believe that even when it seems like he's doing bad things, he must  
really be doing them for the Good."

How can all these people be right? The answer is that each is  
responding to a different contradiction raised by the president's  
Guantanamo policy. In an impassioned 2006 speech on the Senate floor  
on the right to habeas corpus, Mr. Obama declared, "I do not want to  
hear that this is a new world and we face a new kind of enemy." During  
the campaign, his language implied that all we needed to settle the  
detainee issue once and for all was to shut down Gitmo.

As president, he is finding out that this very much is a new world,  
that we do face a new enemy, and that the problems posed by Guantanamo  
have less to do with the place than the people we detain there.

Put simply, the U.S. needs the ability to detain people we know to be  
dangerous without the evidence that might stand up in a federal  
criminal court. Because we can't say when this war will end, moreover,  
we also need to be able to detain them indefinitely. This is what  
makes the war on terror different, and why our policies will never fit  
neatly into a legal approach that is either purely criminal or purely  
military.

The good news is that Mr. Obama is smart enough to know that the  
relative obscurity of Bagram, not to mention the approval he has  
received on Guantanamo, enables him to do the right thing here  
without, as Mr. Greenwald notes, worrying too much that he will be  
called to account for a substantive about-face.

The bad news is that we seem to have reached the point where our best  
hope for sensible war policy now depends largely on presidential  
cynicism.

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