Obama’s Curious Legal Opinion

It looked as if Obama wanted to clean up another Bush disaster, but all he did was ban the term “enemy combatant” while still keeping Bush’s policy on the treatment of terror suspects.

U.S. President Barack Obama has already clearly shown in many instances that he’s serious about change and wants to replace Bush-era ideological governance with a return to common sense policies. Still, after 50 days in office, his administration has shown shockingly little desire for change in restoring civil liberties, limiting presidential power, and guaranteeing constitutional rights.

True, on Obama’s first day in office and amid a great deal of applause, he announced his intention to close the controversial Guantanamo prison camp within a year. What came of that, however, didn’t result in much celebration.

Last Friday, he explained that he was doing away with the deliberately confusing term “enemy combatant” coined by his predecessor George W. Bush immediately following the 9/11 attacks. At first, that sounded promising.

Bush coined that term in order to justify incarcerating suspected terrorists outside the United States for unlimited periods and without the benefit of a trial. Obama’s predecessor argued that “enemy combatants” were people captured outside the classically defined limits of a “battlefield” and were therefore ineligible for the normal civil rights protections granted to other prisoners. His legal advisors decided Bush could carry out his policies based on the concept of a president acting during wartime. This was one of the greatest gaffes of the Bush administration.

One day later, on Saturday, the U.S. Justice Department announced a so-called court order saying that the president had the right to jail terror suspects without trial – exactly as requested by the Bush administration. In Eric Holder’s Justice Department, the definition of a “prisoner” hardly differs at all from the definition used by Bush’s lawyers. In short, Obama rejects calling them “enemy combatants,” but basically retains the same confused, inhumane logic of how they may be handled.

The week previously, civil and human rights activists were shocked that the Obama administration decreed that prisoners in the U.S. detention facility in Bagram and other secret CIA dungeons around the world did not have the right to protest their detention or treatment before an American court. In addition, America put immense pressure on the British government to keep any records of torture strictly secret.

That pressure was apparently Obama’s way of tepidly forestalling any attempt to charge the Bush regime for any crimes. His evident disinterest relates not only to possible Bush administration rights violations in Guantanamo, but also the heavily criticized fact that they spied on American citizens in Bush’s pursuit of the “War on Terror.”

A few Democrats, however, refuse to have their attempts to investigate possible abuses diverted by the economic and financial crisis. Two Senators, Diane Feinstein and Patrick Leahy, Chairman of the Senate Judiciary Committee, aren’t prone to going along with Obama’s “let’s forget-about-it” policy and have announced their intention to establish a committee to investigate Bush’s wrong-doings from the invasion of Iraq to the eavesdropping program and on to Guantanamo. But even many Democratic politicians would prefer that Obama “look to the future” instead.

Conservative critic Rich Lowry, columnist for National Review magazine, recently branded Obama’s behavior as a “three-step maneuver” which he describes as follows: “Barack Obama has perfected a three-step maneuver that could never even be attempted by a politician lacking his rhetorical skill or cool cynicism. First: Denounce your presidential predecessor for a given policy, energizing your party’s base and capitalizing on his abiding unpopularity. Second: Pretend to have reversed that policy upon taking office with a symbolic act or high-profile statement. Third: Adopt a version of that same policy, knowing that it’s the only way to govern responsibly or believing that doing otherwise is too difficult. Repeat as necessary.”

While Lowry’s pithy summary indirectly supports Obama’s policy as “responsible,” other Republicans accuse him of going too far with what has up until now been a largely symbolic policy relaxation. Ex-Vice President Dick Cheney, self-admitted mastermind of Bush policies, used a weekend interview on CNN to seriously claim that Obama had made America “less secure” with his policies.

Activists still find it difficult to believe that after years of massive statutory violations and misuse of the U.S. Constitution, Obama, himself a constitutional lawyer, now approves of his predecessor’s slash-and-burn tactics regarding civil liberties and the secret-mongering that Cheney still defends.

Columnists point out that it would be idiotic to assume that Obama is just like Bush. Liberal commentators like Glenn Greenwald may be struggling with themselves, but they also point to the brighter side of the new administration. For example, Obama has ordered that CIA prisoners now must be interrogated in accordance with guidelines in military field manuals, i.e., no torture permitted, and that the Red Cross be allowed access to all prisoners. They also point to his decision to close all secret prisons, end the military tribunals at Guantanamo and try those prisoners in U.S. criminal courts. But 50 days into the Obama administration and still no sign other than symbolic policies is causing worry that Washington may satisfy itself with merely cosmetic reforms and do little to really end the injustices of the Bush era.