Waking Up to Minority Report

Matt Taibbi has an interesting post that’s a bit long to properly quote, but I’ll give it a shot with some splicing and dicing.

You can sort of see that, maybe, with the economic policies. If you were bent on clinging to the good-king fantasy, you could hold your nose and imagine that Summers/Rubin cast a spell on poor Barack. But this Gitmo thing is different. It’s not like Barack Obama doesn’t know what habeas corpus is. The guy was a freaking constitutional law professor (or “senior lecturer,” if that controversy over his academic title still rankles you). And yet Obama seems to be determined to preserve the whole concept of preventive detention, which is every bit as jarring and upsetting as the preemptive invasion concept Bush introduced. In fact this whole Gitmo episode should serve as a reminder that the upper crust of the current Democratic leadership has not, for the most part, even publicly renounced preemption.[…]

[…]Getting back to preventive detention: it’s important to remember that what’s going on at Gitmo has to be construed as a specific, public endorsement of preventive detention. For we all know that there has always been preventive detention of one sort or another in this country, ever since America became a world power: suspected spies whisked off in the middle of the night, political dissidents in foreign countries busted on trumped-up charges and quietly flown to someplace like Syria or the Phillipines for the car-battery-to-the-balls treatment. Hell, even here on American territory, we have a legal framework through FISA to quietly do all sorts of things to suspected miscreants. Where there is a will, and a loathed enough suspect, there has always been a way in America, no matter what the actual law is or has been.

Taibbi’s post (as aforementioned) is fairly long, so he addresses more things — some of which I agree with and others I don’t — but let’s work with this. I’ve written about Obama’s stance on preventative detention before, and I stand by what I argued then. That is, Obama wasn’t the one who hauled off 18 Uighurs and threw them in jail without due process or evidence. That was Bush. Now, unlike other arguments — perhaps about the economy — you really can’t say that this basic fact of causality changes as time progresses. There’s simply no getting around the fact that the Bush Administration implemented a system of open preventative detention. As such, it isn’t easy to say the continued detention these innocent people is an endorsement of preventative detention. To borrow an analogy Taibbi uses himself, calling this an endorsement of preventative detention by Obama would be akin to saying Obama supports preemptive invasion (the Bush doctrine) because he hasn’t immediately withdrawn all troops fro Iraq.

But to get back to the point of whether or not Obama’s decision is defensible sui generis, here’s the issue: the problem with preventative detention isn’t that these people are usually good characters (though in the case of the Uighurs, they seem to be), the problem is that it undermines America’s credibility. Now, these facts being what they are, Obama must decide between working to restore America’s credibility abroad — a project that’s generally going pretty well, or on the other hand, risking a serious, and in some ways legitimate, popular backlash against freeing people who will in some cases arm themselves to fight American troops. After all, public support for imprisoning detainees in SUPERMAX prisons on American soil is dreadful, what sort of anger would Obama arise by simply freeing them? It’s hard to say, but it’s not a stretch to say it could be the sort of incendiary backlash that opponents of Obama’s domestic agenda could harness to erode support for important domestic objectives.

So the final calculus then is a decision between enhancing credibility abroad or ensuring as much support as possible for sorely needed domestic reforms. It’s not a choice I envy.

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