In The Past


it took me a long time to come to a decision that the person I liked was not the person I thought they were.

Maybe with age I have learned something.

The inimitable Glenn Greenwood says it infinitely better than I could ever dream of saying it:

Carter suggested that trying detainees for “war crimes” for pre-2001 acts violates the Constitution’s ban on ex post facto punishments (since the U.S. was not at war at that time), and independently, he objected to “the deliberate decision to take this case away from federal prosecutors,” arguing that “our default choice for the prosecution of suspected terrorists should be federal court” because “the substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome.”  While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the U.S.S. Cole — raising all of the serious objections Carter voiced to the Ghailani case.

Carter had also voiced serious concerns over the Bush DOJ’s use of the “state secrets” privilege as a means of evading vital constitutional and other legal questions — only to watch the Obama DOJ do the same thing.  He insisted upon a distinction between conventional wars of the past and the “War on Terror” when claiming presidential power — pointing out that conventional wars have limits and come to an end and the “War on Terror” doesn’t — only to watch the Obama administration discard that distinction and instead adopt exactly the Bush/Cheney “war” theory as a means to detain people with no charges. During the campaign, he expressed excitement over what appeared to be Obama’s stated willingness to prosecute Bush officials for war crimes, only to watch Obama, once elected, quickly insist that we should Look Forward, not Backward.   Relatedly, Carter advocated real consequences for DOJ torture-approving lawyers such as John Yoo (specifically, his firing from Berkeley), only to watch the Obama administration take multiple steps to protects such officials from any legal consequences.  He applauded the Bush Pentagon’s cancellation of a key appointment of Gen. Jay Hood to Pakistan on the ground that Hood had presided over Guantanamo and was thus “tainted by torture,” only to watch Obama appoint the highly tainted Gen. McChyrstal as his commander in Afghanistan.

It looks as if Obama is leaning toward the “unitary executive” model.

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