A Gut-Check Moment for Mr. Obama

When George W. Bush left office, and John McCain went down to defeat, there was a sense among a great many Americans that a tremendously dangerous nightmare was over, that years of wildly violent, constitutionally questionable, unbelievably expensive and morally appalling over-reaction to 9/11 were behind us, that an America which didn’t use the NSA to spy on virtually anyone, an America that didn’t indefinitely detain people without due process of law, that didn’t torture, that didn’t consign millions to death and maiming by way of wars based on lies and the desire to make money while winning elections…a lot of people thought that America might show its face again.

But that was Hope and Change and all that stuff. The dreary fact of the matter is that the slash-and-burn attitude taken towards the US Constitution by the Bush administration did such tremendous damage to the most basic underpinnings of this society that it was widely feared there would be no going back. After all, any politician who has gotten to the point where the office of the President is even a possibility is a politician absolutely drenched in hubris, ego, and a desire for personal power. It cannot be any other way; there are no angels flying in that rarefied atmosphere of American politics, and my rule of thumb for many years now has been that a politician most people have heard of is, to one degree or another, an utter and complete bastard, for only utter and complete bastards have the will and ruthlessness to achieve such heights…and when it comes to presidents and serious presidential contenders, multiply that by a factor of ten. I’ve met a great many of them on too many campaign trails, and trust me, almost none of them are people you’d like to be stuck in an elevator with, much less allow them to run the country.

The point is, there are not many politicians at that level of political power who have the kind of personal integrity that would allow them to walk away from the extraordinary powers the Bush administration laid claim to by Executive fiat. Those powers were still intact, just waiting for the next president, and it was to be hoped that Mr. Obama would turn out to be one who would actually lay aside the contra-constitutional “Unitary Executive” powers left for him by Mr. Bush, the kind of swell guy his campaign pitched to the country during the seemingly-endless 2008 presidential race. After all, Mr. Obama repudiated Guantanamo Bay, lamented America’s ravaged international reputation, and swore not only to restore the rule of law to America, but that his administration would be the most transparent in American political history.

It hasn’t quite worked out that way. There is honor, there is integrity, and there is this administration, the very living definition of “half a loaf.” They haven’t been so bad, but they’ve been very far from good. Sure, Mr. Obama hasn’t lied us into wars that got hundreds of thousands of people killed, but he and his people have fallen far short of fulfilling the promises made to make right what had gone so wildly and conspicuously wrong with the manner in which American government goes about its business. Pressing questions have been raised regarding exactly what kind of man the president is, where his integrity lies, and why he has spent so much of his first term either in retreat, or fully embracing the very policies he campaigned against so eloquently.

Well, I’m not going to go so far as to say that one stroke of his pen can undo all that disappointment, but I am damned sure of one thing: this president has before him a gut-check moment of great significance. If he gets it right this time, a portion of faith will be restored. If he blows it, well…as Shakespeare reminds us, one may indeed smile, and smile, and be a villain.

The gut-check moment has been set in motion by Senators Levin, McCain, and the Senate Armed Services Committee:

The Senate soundly defeated a move to strip out controversial language requiring mandatory detention of some terror suspects, voting it down 61 to 37 and escalating a fight with the Obama administration over the future course of the war on terror.

The proposed amendment to the massive National Defense Authorization Act would require the FBI and other civilian law enforcement agencies to transfer al-Qaida suspects arrested overseas on charges of planning or carrying out a terror attack into military custody.

The provision has also split the Democratic Party, triggering an unusual fight between the White House and Armed Services Committee Chairman Sen. Carl Levin of Michigan, who co-wrote the measure and took to the floor earlier on Tuesday to defend the amendment. Levin has also found himself in the cross hairs of powerful Democrats like Judiciary Committee Chairman Sen. Patrick Leahy of Vermont and Intelligence Committee Chairwoman Dianne Feinstein of California. Both lawmakers urged their colleagues to strip the detainee language out of the bill and accused Levin of overstepping his jurisdiction.

But Levin’s biggest Democratic opponent was Sen. Mark Udall, D-Colo., who sponsored an amendment designed to remove the detainee language.

These provisions were added by Levin and McCain in secret and without a single hearing. What’s the big deal? Amnesty International makes it plain as day:

The new National Defense Authorization Bill (S1867) presented to the Senate by the Armed Services Committee is such a disaster for civil liberties and human rights it is difficult to know where to begin.

The Bill does not set any territorial limits on where this conflict is being fought. The presumption is that US forces can engage terror groups with kinetic weapons systems wherever they find them – London, Copenhagen, Istanbul and Kampala are all fair game and to hell with consequences for any citizens of those countries who get caught in the middle.

Also, let us not forget that the Military Commissions currently consist of two temporary courtrooms on the Guantanamo Naval Station that have barely managed to process six cases in almost a decade. How on earth does the Senate expect them to cope with such an expanded mission?

Even if an individual is exonerated of any wrongdoing, Section 1033 of the Bill requires that they continue to be held in Gitmo if there is a confirmed case of detainee recidivism in that individual’s country of origin. Imagine if your personal freedom depended on the lawful behavior of every single one of your fellow 350 million US citizens – we’d all be in jail.

Finally, there is the military itself to consider. The armed services have a limited criminal investigative capacity and much of that force is already deployed down range in vital counter-terrorist operations. Giving the military an expanded investigative mission is going to divert resources from the frontlines. That does not seem very smart.

No one wants this. Not the military. Not the intelligence community. Not law enforcement. Not the courts. S1867 proposes an ill-conceived fix for a problem that doesn’t exist. Federal courts have processed hundreds of terrorism-related cases in the decade since 9/11. The process is established, respected, efficient and well supported.

The Senate seems to have forgotten T. Bert Lance’s celebrated dictum ‘if ain’t broke, don’t fix it’ and, if this Bill passes, we are all going to have to live with the consequences unless President Obama finally shows an appetite to fight for what he once believed in.

And here is where the gut-check comes in. Mr. Obama has threatened to veto this legislation if it comes to his desk with these provisions intact…threatened, in fact, in the strongest possible terms:

Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests.

The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people.

Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.

So there it is. If this bill finishes wending its way through the Senate and passes, it will be greeted by the warm embrace of the Republican majority in the House, and will then be on its way to Mr. Obama’s desk, where his veto threat will be waiting for it. Whether or not he follows through on his threat and slaps this dreck down is the question now before us all. One way or another, we will soon learn a very large truth about the man in the Oval Office, and whether he has the integrity to do what is right and follow through on his word.

We shall see.