President Obama's most enthusiastic supporters continue to give him the benefit of their doubts. They know that the many challenges he faces are enormously difficult, but they still hope that he might, in the fullness of time, get around to restoring the rule of law and the promise that is America. Unfortunately, their hope is misplaced.
The founders' America, which was hijacked by cowboy America during the Bush years, continues to be held hostage by the same, lawless forces. President Obama has not stood up to the advocates of war without end or sought to punish the abuses that go with it. On the contrary, he has capitulated, as certainly as President Lyndon Johnson caved when he escalated a war he knew could not win in Vietnam rather than suffer Republican charges that he and his party were "soft on communism."
This is the tragedy of modern America, a frightened nation dominated by politicians who imagine each encounter in their global war on terrorism as just another episode of cowboys and Indians (Cohn 2007). They do not want equal justice under law for all suspects, which our Constitution promises. They seek vigilante justice, enforced by torturers and military commissions, while denouncing civilian courts and traditional rules of evidence as outmoded impediments to public safety (Editorial 201 lb). Driven by a bloated sense of manifest destiny, these vicarious gunmen are as indifferent as Osama bin Laden to the inevitable reprisals that revenge-driven policies provoke. They live in the moment, trashing constitutional government at home and endangering U.S. troops abroad (Chermerinsky 2010).
During his first year in office, President Obama urged our economically distressed nation to forget the Bush administration's crimes. "I don't believe that anybody is above the law," he told an ABC News interviewer. "On the other hand, I also have a belief that we need to look forward as opposed to looking backwards" (Koppelman 2009). With this Orwellian doublespeak, the president encouraged Americans to forget that President George W. Bush did not just violate the law; he attacked the rule of law itself (Pyle 2009). Bush's cowboys did not just break a few laws; they insisted that the military and Central Intelligence Agency (CIA) are above all law and can kidnap, detain, torture, and even murder alleged terrorists with impunity. As a result, thousands of helpless, often innocent, prisoners were subjected to unspeakable cruelties, including sexual and religious humiliation (Greenberg and Dratel 2005; Kurnaz 2010; Mayer 2008).
Some prisoners died. Others went mad; still others committed suicide. The United States was disgraced, and its soldiers were endangered as thousands of enraged Muslims, bent on revenge, joined al-Qaeda and the Iraqi resistance.
President Obama was elected in no small part because he promised to end this national shame. He was awarded the Nobel Peace Prize less for anything he did during his first months in office than for his promises to close the infamous prison at Guantanamo and stop torturing prisoners. In accepting the prize, Obama affirmed those promises, and then acknowledged, perhaps more candidly than he realized, that "even those of us with the best intentions fail to right the wrongs before us" (Obama 2009).
His failure to right those wrongs has not been inadvertent. From the moment he took office, Obama refused to hold his predecessors accountable for their crimes (Johnson and Savage 2009). Prosecuting President Bush and his aides would only inflame Republicans, he reasoned, leading them to accuse Democrats of being "soft on terrorists" and undermining the fight against al-Qaeda. Those accusations would distract his administration from its efforts to reclaim the economy, extend health care, end two wars, and address global warming. In this imperfect world, with his limited political resources, Obama said, he must be "realistic," which means not only refusing to prosecute those who designed the torture policy, but accepting their contrived claim, secretly imposed on dissenting experts in the military, State Department, and CIA, that the law against torture was somehow unclear (Johnson and Savage 2009).
But the Obama administration did not just refuse to prosecute the torturers; it actively continued their cover-up (Becker and Shane 2012). Attorney General Eric H. Holder not only failed to investigate low-level agents in an effort to gather evidence against their former superiors, he suppressed (or redacted) Bush era reports by Justice Department and CIA officials that found clear evidence of wrongdoing (Leopold 2009). Nor did he, or Obama's CIA directors, bother to track down those prisoners who disappeared into the CIA's secret prisons, never to be seen again (Linzer 2009).
The President's lawyers have worked furiously to keep photographic and documentary evidence of torture out of the public eye (Horton 2011). They have fought hard to prevent innocent victims of torture from suing their torturers in federal court (Cole 2010) and will not allow them into the United States, even to tell their stories to committees of Congress (U.S. Department of Homeland Security 2008).
President Obama continues to denounce torture, but, like former Attorney General Michael Mukasey, will not characterize those who did it as criminals. He will not even say that those who waterboarded Khalid Sheikh Mohammed 183 times committed a crime because they supposedly relied on bogus legal memoranda prepared by political appointees in the Justice Department (Greenberg and Dratel 2005, 172-217; Pyle 2009). Obama has been praised for not torturing anyone on his watch, even as he quietly refused to deny that option to his successors. Indeed, he exempted from prosecution anyone who relied "in good faith" on Justice Department secret torture memos, which not only tried to define torture out of existence, but advised torturers on how to escape prosecution if well-established laws were invoked against them (Mazzetti 200%). In so doing, our constitutional lawyer-turned-president has effectively claimed for himself and his successors the power to disregard the criminal law, as if they were Stuart kings imbued with a royal prerogative to exempt their secret agents from any duty to obey the law (Pious 2011). Under Obama, as under Bush, ours is no longer a government under law. It is a government of options--options to torture, assassinate, or even to wage war at the president's direction (Becker and Shane 2012; Fisher 2012; Klaidman 2012; Pyle 2009).
Meanwhile, Obama's military has joined the CIA in kidnapping alleged terrorists from other countries, especially in the horn of Africa, for delivery to the interrogators of yet other countries (Scahill 2011). While the president proposed closing the prison at Guantanamo Bay, Cuba, and hoped to move at least some of its prisoners to the United States for trial in federal courts, his Justice Department sought to persuade American courts that foreign nationals who have been seized outside Afghanistan, and delivered to the U.S. prison at Bagram Air Base, have no legal right to challenge their imprisonment, because the prison they were delivered to, unlike Guantanamo, is in a war zone or is not clearly under U.S. control. In other words, the U.S. government can take prisoners from the United States or Guantanamo, move them into an alleged combat zone, or put them in a prison not exclusively under U.S. control and, in the process, strip them of their constitutional right to challenge the legality of their detention (Wilber 2010). This is a new definition of presidential power.
Of course, neither the Obama nor Bush administrations have acted alone in shielding torturers from prosecution. Both have received considerable support (or pressure) from many Republicans and some Democrats in Congress. When the Supreme Court ruled in June 2006 that President Bush had no authority to suspend the Geneva Conventions in Afghanistan, he and his torture team, along with their interrogators, became legally vulnerable to prosecution (Hamdan v. Rumsfeld 2006). To avoid this risk, Bush personally went to Capitol Hill in September 2006 and persuaded a Republican Congress to grant them amnesty from prosecution (Pyle 2009, 166-68). The Bush administration also ended waterboarding, so that the statute of limitations on that heinous crime might run out before Democrats could initiate prosecutions. Unless repealed, the relevant statutes of limitation will expire before the end of Obama's presidency.
The amnesty law and the statutes of limitation are formidable obstacles to restoring the rule of law. But they are not the only ones. Federal judges, especially those appointed by Republican presidents at the urging of the Federalist Society, have shielded administration officials from civil suits by their victims (Pyle 2009, chap. 9). Some judges have ruled that civil complaints must be dismissed because trials could result in the disclosure of state secrets, as if there is nothing wrong with granting criminals the power to hide evidence of their crimes (Pyle 2009, chap. 9; ACLU v. Department of Justice 2011).
While President Obama has promised "transparency," his administration has advocated more secrecy than its predecessors (American Civil Liberties Union [ACLU] 2011). His lawyers have striven to derail legal challenges to the CIA's destruction of torture tapes and the National Security Agency's illegal wiretapping, while White House aides have persuaded Congress not to hold conspicuous investigations into the Bush...