Sunday, May 31, 2009

Obama’s Opportunity

By John Wilson

When I watched Obama’s speech at the National Archives, it occurred to me that Obama has an opportunity that he is not willing to truly invest in. Instead of embracing the reality that fear has altered our culture and fueled an intense debate questioning the limits of one’s right to privacy, due process and a fair trial vs. one’s basic assumption that the police power of the government is capable of protecting them, Obama defers to the status quo. He expounds on mistakes that the Bush administration made, the ad hoc legal system they proposed and mended on the fly, and the ‘realities’ of terrorism. He profoundly states that, “[terrorism] will be here 5, 10, and 20 years from now”. Understandably so. But that isn’t the only reality Americans deserve to hear.

Obama goes on to say “Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people”. But how can a determination such as that be made before all the detainees have been tried? If detainees are not going to be released regardless of the trial decision, then what’s the purpose of the trial?

Amongst the five categories that Obama outlines for the handling of detainees, there are two trial options. One in federal court, the other by military commission. No detainee in his right mind would choose a trial by military commission over a federal court. Not when a federal court assumes a detainee to be innocent until proven guilty - just like any other suspect - and provides more guaranteed protections and privileges. But that decision won’t be made by detainees, it’ll be made by the federal government. By having the option of venue the government is able to utilize evidence as they see fit - justice be damned.

Another reality is that Obama isn’t currently prepared to fully question the Bush enemy combatant policy. If he were, he would have to ask questions that no one really wants to hear an answer to, including himself.

Questions such as: if a suspected terrorist is acquitted at trial or a military commission and set free, then commits a deadly act of terrorism, who will have blood on their hands? Would the public hold Obama responsible? Or would the public be content with having granted a suspect their constitutional right to a fair trial, clothed in a presumption of innocence?

Would the police power of the government use a ridiculously broad definition of what constitutes terrorism to ensnare those suspected of much lesser crimes, if so, who would be responsible? (Let’s not forget that the Terror Watch List which prevents persons from boarding airplanes in this country has over 1 million people on it. That’s just the beginning of what we are likely to see in the future). Overly broad and expansive powers being misused for the “right” reasons. So, frankly, even if you are a supporter of Obama’s you should be leery of the proposal’s unprecedented aggregation of power. Long after he leaves office such power will reside in the executive branch.

Better yet, who can right the wrongs? While the Supreme Court has been willing to hear and rule on some recent terrorism cases, notably Rasul v. Bush (03-334) 542 U.S. 466 (2004) , Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004), it’s still questionable how far the Court is willing to challenge the executive branch and Congress, especially in a time of ‘war’. Researchers at Duke Law School have concluded that historically “[t]he willingness of the Supreme Court to protect civil liberties in times of war has varied”. Ex Parte Milligan, 71 U.S. 2 (1866), included a petitioner bringing suit alleging a military commission did not have proper authority to try him. Jurisprudence trumped fear and he subsequently won and was tried in Circuit Court.

Obama has an opportunity to pose such questions and reassure Americans that the constitution has indeed done battle with analogous issues in a similar context. Terrorism didn’t start with 9/11, and we shouldn’t bury the Bill of Rights with the victims of it. If Obama isn’t willing to utilize this opportunity to transition from a fear-focused doctrine to a freedom-centered one, this opportunity will surely define him. The legacy of “prolonged detention” will be his and his alone.

John S. Wilson attends Virginia Commonwealth University with a triple major in economics, sociology, and women’s studies. He blogs at Policy Diary, contributes to Hip-Hop, and serves as a regular contributor to PolicyNet, where he writes about domestic and foreign affairs. He recently served as a legislative fellow in the office of the Honorable David Englin (D) of the Virginia House of Delegates.

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