The President Called Us All Out To Work For The Rule Of Law

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So the Dog had some vacation days which needed to be burned (use it or lose it vacation day policies suck!). This means he was able to watch the Presidents speech live on MSNBC. Since many of you will be at work, and won’t have gotten to see it the Dog thought that he would share what he saw with you, prior to the Traditional Media going over and over and over it, always spiced with the “Dueling Speeches” meme, since some old dried up War Criminal also gave a speech today. The Dog is not going to talk about the War Criminal’s speech at all.  

From a purely technical point of view, the President gave a good speech, he almost always does. His tone was serious, he had good cadence and his speech writers did a good job of keeping him on the messages which he has pushed all the way back to the primary campaign. He made a point, multiple times (if you want to know exactly go read the transcript) that part of keeping the Untied State secure was following the rule of law.

To try to quite some of the Republican hysteria about Gauntanamo releases he detailed what the Bush administration had already done, more than 500 of the prisoners who had been held there were released by the Bush administration. He also talked about the ongoing Court cases related to the Gauntanamo Prison, such as the Uighers who were ordered released in late 2008. To the Dog this was the worst part of the speech because it came off a little whinny. It was as though he was saying “look at all the problems I inherited, poor me!” While the Dog is sympathetic to the huge numbers of issues this president has to deal with, it only goes so far. This is not a job he was drafted for. It is one he fought tooth and nail to have, so it is unseemly, to the Dog’s mind anyway, to complain that it is hard.

The President made clear that he views the current 240 detainees as being in five separate categories:

1) Those who could be tried in Federal Courts

2) Those who needed to be tried in Military Commissions for security or operational reasons

3) Those ordered released by the Courts already

4) Those who could be transferred to other countries for detention or rehabilitation

5) Those who can’t be tried due to tainted evidence but are too dangerous to release.

He made it clear that he will not be using the Bush era MCA laws for the detainees in category 2. He said he will be working with the Congress to draft new legislation that will make these Commissions align with the standard of law we use in the US. It is hard for the Dog to understand what this will really mean without seeing the proposal, which the president did not roll out today. The missing piece is why these men could not be put into the first category and tried in Federal Court? We will have to keep an eye on the reasoning for this.

The men in category five are also worrying. It does not seem consistent with the rule of law to hold anyone, even an avowed enemy of the United States without trail or charge indefinitely. The fact that we can not try them because we tortured them (the most likely but not only reason evidence might be considered tainted) is not really germane to the question of being held without trail. The President said he would work to set up a legal framework that would allow these men to be held, but there is a Constitutional hurdle there as well. The Constitution in Article One, Clause Three states:

No Bill of Attainder or ex post facto Law shall be passed.

Right now there seems to be no set of laws that allow for the indefinite detention without charge or trail of anyone. To create the framework the President is talking about would mean an ex post facto law. Perhaps he will try to do something without a law, but in any case it is troubling and should be watched closely by anyone that really believes in the rule of law and does not just pay it lip service.

Which brings the Dog to the point he was watching for, will we really follow the rule of law in terms of torture accountability. It became clear in the Presidents speech that he means something different when he says accountability than most of those who have the issue of torture as their primary one. We mean investigations, and where applicable prosecutions for these War Crimes. The President means documentation of what happened. We may find this not hard line enough, that the President is trying to weasel out of what will be a hard and ugly time in the nation as we grapple with this issue, but it is, in fact, the Constitutionally correct position.

The President made it clear that he does not want a truth commission, not because he wants to whitewash this, but because he wants the actual, Constitutional, institutions of the nation to do their job. He pointed out that the Courts, the DOJ and the Congress are completely capable of handling the investigations of and prosecutions for the Bush era State Sponsored Torture program.

Without explicitly saying it, the President made the point it is not his job to do these things. In fact it would be a misuse of his constitutionally mandated Presidential power to do so. He is not the chief law enforcement officer of the United States that is the Attorney General. He is the leader of the Executive Branch, which is not responsible for oversight, which is strictly the preview of the Congress. He is not in charge of interpreting law and finding guilt, which is the role of the Courts.

Today the President made it clear. If you want accountability for apparent War Crimes, then you should not go to him. It is not his job and he is busy with other things. He wants to work within the Rule of Law, but as the Dog says often, that mean being within the Rule of Law at all times. On the issue of the State Sponsored Torture program of the last administration that is up to others and the President will not step in.

The Dog thinks the President is right. We have a system that has too many members not fulfilling their responsibilities. Those of us who are working for accountability (our definition not the Presidents) must start to put the focus of our pressure on those whose job it is to make these things happen. It was easy to focus on the President, one person, very visible to try to change his mind. It will be harder to make things move forward as we have to pressure many Committee Chairs and the AG, but this is our system, it is the challenge we have taken on and we must be resolute in driving forward for it.

The President called out just about everyone in the nation on the issue of torture today. He has made it clear it is our job to make it happen, using the system of laws we have. This is the very definition of the Rule of Law. While it is disappointing to know he will not do more, he has at least told us what the road map he will support looks like. No matter what else the traditional media tells you the news from this speech was, this is what the Dog saw today.

The floor is yours.

Cross Posted At Square State


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  1. there is a clear path from the President on torture accountability.  

  2. … I’m not too sure Obama is going to be able to dodge this one entirely.  He certainly has the bully pulpit and thus far what he has said (i.e., prosecutions would be for motive of “retribution,” “moving forward,” all that) hasn’t been very inspiring.

    He can’t have it both ways.  If he wants to say out of this then he should really stay out.  But as more and more devastating information comes out on torture, I think that’s going to be impossible for him.  It’s not a matter of his pursing legal remedies, but stating his own views on this and so far I haven’t heard anything from him that wasn’t entirely political.  “We do not torture,” ouch.

    • Edger on May 21, 2009 at 18:44

    rhetoric he’s been using to try to justify and make acceptable NOT aligning with the standard of law really bothers me coming from a Constitutional Lawyer. It’s political rheortic and smokescreen.

    If he wanted seriously to “align with the standard of law” there is no need for an MCA or the commissions and they should by his own reasoning be tried in “regular” courts with the same rights to confront accusers and challenge evidence – only evidence allowed by law – accorded any other criminally charged defendants, so it is as obvious as the nose on my face that he has no intention of doing anything but circumvent the standard of law with these prisoners, and sell bullshit to the American Public and anyone else he can find who will buy it and not see through it.

    Two quotes from his own speech on the floor of the Senate on September 28, 2006 – his own reaction to passage of S. 3930, Military Commissions Act of 2006, which approved U.S. torture of detainees and strips Constitutional rights away from detainees, that make it clear the he has always intended to continue the so-called WOT, the dismantling of rights, and avoidance of the law:

    All of us – Democrats and Republicans – want to do whatever it takes to track down terrorists and bring them to justice as swiftly as possible. All of us want to give our President every tool necessary to do this. And all of us were willing to do that in this bill. Anyone who says otherwise is lying to the American people.

    I’ve heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that.

  3. I was afraid this would happen. Obama like all rulers likes to think of himself as bound by the rule of law, unless it seems those laws get in the way.

    In spite of all the self congratulatory legalistic mumbo jumbo this is a President that just candy coated a policy of incarceration without any sort of due process. The Fifth Category… Would these be the guys that he has decided to keep imprisoned indefinitely without charging them? It certainly sounds that way.

    In 1215 a bunch of peasants demanded the right of Habeas Corpus–bring me the body. They were tired of getting thrown into dungeons at the Kings whim. This principle made its way into the Magna Carta and since then it has been the most basic of human rights of civilized societies. It is enshrined in the US Constitution. To deny Habeas Corpus is to deny a persons basic humanity. There can be no reconciliation with those whom you insist upon arbitrarily scooping off the street. They will always despise you.

    Despite his lovely rhetoric and sweet phrasing today, Obama has just declared the United State’s right to deny Habeas Corpus as we see fit, and declared that this is within our values and our rule of law.

    In many ways this is worse than anything the Bush administration could accomplish, because it signifies that this is not the unlawful actions of one rogue regime, but the considered policy of the US Government under multiple administrations. Today Obama has codified the denial of Habeas Corpus into permanent US policy, reversing a millenium of legal human rights progress.

    It is a sad day indeed.

    Oh, and another law that he seems to feel fine with ignoring is the law that says you have to prosecute people who broke the law. Unless, of course, that would get in the way of moving forward. But I digress, the real tragedy today is the death of Habeas Corpus, and it had to come, could only come under a self styled progressive moderate president.

  4. actively blocking legal challenges using the bush lines of legal bs such as state secrets and the really odious national interests? Keeping us safe is something I don’t believe at all. It’s almost like Cheney is calling the shots here. He has painted himself into a corner by validating the need for these crimes.

    If you listened to the absurd reasons given by the senators for their disgusting vote, the only one I could find that made sense was if the were on American ‘soil’ they would have rights, you know like habeas corpus. Instead were told they are so evil we cant let them have a defense. Tweedy actually said why don’t we execute them.

    Seems the last thing any of them want is to let these detainees have their day in court. Why? Makes you wonder how and why they were picked up. Apparently some where sold to us by bounty hunters. Who decides which category they fit into? Pretty hard to keep the policies,validate the bs storyline, and then claim that it’s illegal to remedy this, all the while ignoring the heart of the matter, the hijacking of our system by criminals.  Seems to me that the Laws as well as the ‘terrorists’ are being tortured here.  

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