Obama on Detention and Interrogation

Be sure to read Karen Greenberg's, "Detention Nation." This is outstanding essay on the continuity on detentions and interrogations from the administrations of President George W. Bush to Barack Obama. Greenberg details what most people would find as grisly treatment of captured enemy combatants. What's interesting is how Barack Obama, for all his "moral" bluster," is perfectly fine with his predecessor's policies:

IT CANNOT be denied that, on some crucial points, the Obama administration stands where its predecessor did. There is no language to define the detainees, no established court procedure by which to try them, no signs of plans to proceed with trials in Article III courts—i.e., the federal-court system. The overt signs that this new population of detainees will be treated any differently from the detainees that came before them are yet to come, though there is the assumption that this Justice Department intends to act within the law. Importantly, however, there is no real sense that the rationale for detention (which purposefully keeps prisoners outside of the court system) will come under reconsideration.

It is no surprise then that former–Bush administration officials continue to predict that the president won’t find it so easy to repudiate and replace the detainee policies of the Bush years. In an interview with the New Yorker’s Jane Mayer, former–Attorney General John Ashcroft held that “President Obama’s approach to handling terror suspects would closely mirror his own.” In Ashcroft’s words, “How will he be different? The main difference is going to be that he spells his name ‘O-B-A-M-A,’ not ‘B-U-S-H.’” Douglas Feith, under secretary of defense for policy under Bush, voiced a similar sentiment recently when he described President Obama’s allowance of one year for the closing of Guantánamo as “effectively endorsing a large part of what the Bush administration did.” While the intentions of the Obama administration seem to be aeons away from those of its predecessor, the defenders of the Bush team take the delay in visible changes as a validation of their own policies.

Moreover, if you scratch the surface, it becomes clear that there is a great continuity of personnel. With Secretary of Defense Gates as a holdover from the Bush era, it is no wonder that his Pentagon would produce a report defending conditions at Guantánamo. Nor that the presiding judge in one Guantánamo military-commission case would defy President Obama’s edict that the commissions be halted.

This continuity is not just a matter of delay due to the confirmation process. The president seems intent on—or reconciled to—preserving some continuity between the Bush administration and his own. All three special task forces that followed the executive orders of January 22 will be led by government lawyers who served in the Bush administration—Matthew Olsen for closing Guantánamo, Brad Wiegmann (along with a yet-to-be-named DOD representative) for detention policy, and J. Douglas Wilson for interrogation and transfer policies.

We too may see continuity in our treatment of prisoners. The U.S. military—deploying to Iraq and Afghanistan—still faces a military guard culled mostly from reservists whose primary training has been focused on strategic rather than operational missions. “These are infantry troops, artillery men and tank drivers, not guard forces—and only on the eve of deployment has supposedly relevant ‘just-in-time’ training been provided to them,” according to Charles Tucker, a recently retired U.S. National Guard major general. In February, Tucker witnessed the deployment of the army’s 32nd Infantry Brigade—about 3,500 troops from the Wisconsin Army National Guard—to Iraq, all destined not for the sort of strategic-reserve duties they had primarily been trained to perform, but instead called up for more tactically oriented detention operations.

Like it or not, the Bush administration’s war on terror succeeded in moving the conversation—and the policy—about detention to a point from which it cannot be easily or fully pulled back.

Our prisoners in the war on terror still do not have an acceptable legal denomination. And though all indications are that the status the Obama administration gives them will not be one we used prior to 9/11, this is less about change than about acceptance. Even human-rights advocates and international-law experts have suggested that, in fact, the Geneva Conventions may need to be amended to grant some legally recognizable status to transnational nonstate actors engaged in armed conflict with nation-states. As Professor David Golove of the NYU School of Law notes, “The existing Geneva Convention regime did not contemplate this new kind of armed conflict and does not provide adequate agreed-upon standards to guide government in this difficult area.” If Geneva is amended, then the premise that the Bush administration embraced at the beginning—that the laws as we knew them were insufficient for the threat at hand—will come to define the new policy as well.

It is not only international law that is at stake. In the matter of setting a precedent, the applicability of domestic law is at issue as well. No one has yet gone on record with a viable solution regarding what to do with those individuals who seem to pose a danger so formidable and imminent as to preclude their release and who cannot be tried either for lack of evidence or because the evidence cannot be admitted in a court, having been extracted by torture.

Read the whole thing at the link.

Greenberg is the author of The Least Worst Place: Guantanamo's First 100 Days. And given the evenhandedness of her analysis, the book looks worthwhile.

Related: Compare Greenberg's treatment to that of the hysterical Frank Rich, "Obama Can’t Turn the Page on Bush," via Memeorandum.