by Dennis Loo
The New York Times on March 8, 2009 featured an article entitled “Obama Ponders Outreach to Elements of Taliban.” As far as I can tell, the reactions to this story have focused on Obama’s attempts to work with some parts of the Taliban. The bigger story here, however, has been overlooked.
Some excerpts from this article accompanied by my commentary in italics, followed by some other relevant source materials:
“The president went on to say that ‘we don’t torture’ and that ‘we ultimately provide anybody that 
we’re detaining an opportunity through habeas corpus to answer to charges.’"
we’re detaining an opportunity through habeas corpus to answer to charges.’"So you have a right to challenge your detention, “ultimately.” Be warned then, you could wait a very long time. Ultimately you have a right, but in the long run, as they say, we’re all dead. Obama’s a constitutional lawyer by training. It’s a bit disturbing that he would qualify a right such as habeas corpus this way. And, by the way, there’s yet another qualification.
“Aides later said Mr. Obama did not mean to suggest that everybody held by American forces would be granted habeas corpus or the right to challenge their detention. In a court filing last month, the Obama administration agreed with the Bush administration position that 600 prisoners in a cavernous prison on the American air base at Bagram in Afghanistan have no right to seek their release in court.
“Instead, aides said Mr. Obama’s comment referred only to a Supreme Court decision last year finding that prisoners held at Guantánamo Bay, Cuba, have the right to go to federal court to challenge their continued detention.”
If you’re at GITMO ultimately you can challenge your detention. But if you’re one of the hundreds (who have been and are being tortured, some murdered by torture, such as the taxi driver Dilawar) at Bagram you’re out of luck because the Obama Administration says that you have no habeas corpus rights – not now, and not ultimately either.
“Mr. Obama signaled that those on the left seeking a wholesale reversal of Mr. Bush’s detainee policy might be disappointed.”
Evidently, those who uphold one of the sacrosanct rights, the violation of which precipitated the American Revolution – King George’s suspension of the “Great Writ” of Habeas Corpus – are now “those on the left.” Those who don’t consider habeas corpus rights core principles of law are therefore those right thinking Americans on the right and in the center. Since members of the political right are proud of being the very most patriotic among us, it only stands to reason that such great patriots should regard as dispensable the Great Writ in the US Constitution, a due process right so fundamental that it dates from almost 900 years ago to the Magna Carta, and a right so critical that its absence unmistakably marks a tyranny.
“Mr. Obama said that by the time he got into office, the Bush administration had taken ‘steps to correct certain policies and procedures after those first couple of years’ after the Sept. 11 attacks.”
The abuses were corrected within a “couple years.” Now that’s some news. No one on the left, right, or center has ever made that claim before. Let’s see what Obama’s evidence for that is…
“[Obama credited not Mr. Bush but the former Central Intelligence Agency director Michael V. Hayden and the former director of national intelligence Mike McConnell, who ‘really had America’s security interests in mind when they acted, and I think were mindful of American values and ideals.’”
The proof: they "really had America’s security interests IN MIND." They corrected illegal practices by being "MINDFUL of American values and ideals."
It’s not what you do. It’s what you claim that you were THINKING when you did it.
Speaking of what you do: what do we know about what Hayden and McConnell have done?
Michael Hayden as Director of the NSA approved and oversaw the secret warrantless and felonious wiretapping of hundreds of millions of Americans that began in February 2001 (before 9/11) and continued through both terms of the Bush White House. This surveillance presumably continues to this day since the Obama Administration has not announced its cessation and Senator Obama voted for the Telecom Amnesty Bill, retroactively protecting and sanctioning the telecom companies who went along with the Bush Regime’s illegal requests for that surveillance.
From Sourcewatch:
“Hayden … spoke at the National Press Club in Washington, D.C. on January 23, 2006.
“Knight Ridder reporter Jonathan Landay prefaced a question by noting that ‘the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.’ Hayden responded: ‘No, actually–the Fourth Amendment actually protects all of us against unreasonable search and seizure…. That’s what it says.’ When Landay continued, ‘But does it not say probable—‘ Hayden said: ‘No. The amendment says…unreasonable search and seizure.’
“In fact, the amendment refers to both ‘reasonable searches and seizures’ and ‘probable cause.’
“Later, responding to Landay’s question, Hayden stated:
“’Just to be very clear–and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment…The constitutional standard is "reasonable." And we believe–I am convinced that we are lawful because what it is we’re doing is reasonable.’”
What Hayden was doing, then, in trying to verbally redact the “probable cause” requirement from the Fourth Amendment was claim that the NSA’s surveillance of us all was not a violation because all of the NSA’s surveillance was “reasonable” search and seizure. This was not according to the FISA court that was supposed to make this judgment but was bypassed by the Bush Regime; it was reasonable according to the NSA itself. This is known in layperson’s terms as the fox guarding the hen house. The simple fact that all of us were being spied upon means that Hayden thinks that it is reasonable to spy upon us all. The price of freedom, apparently, is to lose your freedom. And not just our freedoms, but anyone that our government deems suspicious.
“Writing up the exchange, the online magazine Editor & Publisher (January 23, 2006) wrote that Hayden ‘appeared to be unfamiliar with the Fourth Amendment to the U.S. Constitution when pressed by a reporter with Knight Ridder’s Washington office–despite his claims that he was actually something of an expert on it.’"
That’s alright because even though Michael Hayden doesn’t grasp what the Fourth Amendment says, he has our best interests in mind. Government figures who assure us that they are doing everything with our best interests in mind can always be trusted and taken at their word, especially after they have been caught lying repeatedly.
Sourcewatch goes on to recount Hayden’s claims about rendition in a September 2007 speech to the Council on Foreign Relations:
Hayden claimed that renditions have "…been conducted lawfully, responsibly, and with a clear and simple purpose: to get terrorists off the streets and gain intelligence on those still at large."
In contrast to this, Sourcewatch recounts:
“According to a December 2005 Washington Post article on the abduction of German citizen Khaled El-Masri,
"’Masri was held for five months largely because the head of the CIA’s Counterterrorist Center’s al Qaeda unit ‘believed he was someone else,’ one former CIA official said. ‘She didn’t really know. She just had a hunch.’"
"…In the first weeks of 2004, an argument arose over whether the CIA should take Masri from local authorities and remove him from the country for interrogation, a classic rendition operation. The director of the al Qaeda unit supported that approach. She insisted he was probably a terrorist, and should be imprisoned and interrogated immediately. Others were doubtful. They wanted to wait to see whether the passport was proved fraudulent. Beyond that, there was no evidence Masri was not who he claimed to be — a German citizen of Arab descent traveling after a disagreement with his wife. The unit’s director won the argument. She ordered Masri captured and flown to a CIA prison in Afghanistan."
Once the mistake was realized, the agency appeared to be more concerned about avoiding scandal than about the fact they’d kidnapped and tortured an innocent man:
"At the CIA, the question was: Now what? Some officials wanted to go directly to the German government; others did not. Someone suggested a reverse rendition: Return Masri to Macedonia and release him. ‘There wouldn’t be a trace. No airplane tickets. Nothing. No one would believe him,’ one former official said. ‘There would be a bump in the press, but then it would be over.’"
Who are you going to believe, us patriotic, hardworking, security-minded CIA agents, or some guy with a Muslim name?
Regarding that other patriot, Michael McConnell:
As reported by Robert Parry in a February 6, 2008 article:
“At a Feb. 5 [2008] hearing of the Senate Intelligence Committee, Bush’s Director of National Intelligence Mike McConnell said al-Qaeda was refining ‘the last key aspect of its ability to attack the U.S.’ by training Western recruits, who could blend in with American society and carry out attacks on U.S. targets…
So a little over a year ago McConnell was drumming up fear of sleeper Al-Qeada agents.
“The Washington Post on November 12, 2008 reported on McConnell and Hayden:
‘A number of influential congressional Democrats oppose keeping Director of National Intelligence Mike McConnell and CIA Director Michael V. Hayden in their posts because both have publicly supported controversial Bush administration policies on interrogation and telephone surveillance.’”
According to President Obama, these two gentlemen had America’s security in mind when they promoted, implemented and defended their illegal practices of massive, unwarranted surveillance and torture. Therefore their illegal actions were carried out with the best of intentions. They were, after all, "mindful of American values and ideals" when they did them.
Which values and ideals would those be? Humane treatment? Innocent until proven guilty? The right to challenge your detention in court, to confront your accusers, to know the evidence presented against you, and the obligation of the state to show probable cause and file charges? Respect for the Constitution and due process, international law, the Covenant against Torture, the UN Charter?
Obama has rebranded these practices. But the shockingly egregious practices remain under the man who ran for office promising “change.”