I have read president Obama’s speech and was struck by several things. Among them is that for a man who insists on not wanting to re-litigate the last eight years, he has certainly done a splendid job of doing just that.
President Obama’s core complaint is the Bush Administration “went off course” and was guilty of undermining the rule of law. It failed to “use our values as a compass” and broke faith with the Constitution and basic human rights. And of course the main offense was waterboarding, which was used against exactly three known al Qaeda terrorists and was then discontinued. This is, in the world according to Obama, the main legacy and the overriding achievement of the Bush presidency.
But if Mr. Obama wants to tear into past presidents for violations of the Constitution and basic human rights during war time, perhaps he should start with those whom he must surely consider the worst violators of our Constitution and our values: Abraham Lincoln, Franklin Roosevelt, and Harry Truman.
Harvard Professor Jack Goldsmith — who worked in the Bush Justice Department and who opposed waterboarding — has written that
in response to the secession crisis that began when Confederate forces fired on Fort Sumter, Lincoln raised armies and borrowed money on the credit of the United States, both powers that the Constitution gave to Congress; he suspended the writ of habeas corpus in many places even though most constitutional scholars, then and now, believed that only Congress could do this; he imposed a blockade on the South without specific congressional approval; he imprisoned thousands of southern sympathizers and war agitators without any charge or due process; and he ignored a judicial order from the Chief Justice of the Supreme Court to release a prisoner detained illegally.
“No president before or since Lincoln,” Goldsmith has written, “has acted in such disregard of constitutional traditions.” Perhaps President Obama can therefore devote an entire speech to what he must consider to be the awful and unforgivable assault on the Constitution by Lincoln, his purported hero.
After that, President Obama might want to devote an entire speech — or perhaps several speeches — to FDR. After all, President Roosevelt gave order for the mass internment of Japanese-Americans and people of Japanese descent during World War II, a violation of rights President Bush has never approached. All told, around 110,000 Japanese Americans and Japanese nationals were forcibly relocated and interned in “War Relocation Camps.” President Reagan signed legislation apologizing for the policy, which stated that the government’s action was based on “race prejudice, war hysteria, and a failure of political leadership.”
After that speech, President Obama might want to devote a speech — better yet, a month of speeches — to what Obama must surely consider the war crimes of Harry S. Truman.
It was President Truman, of course, who gave the order to drop the atomic bombs on Hiroshima and Nagasaki, killing hundreds of thousands of innocent Japanese in order to prevent the deaths of what was estimated to be more than a million American soldiers.
And in the interest of transatlantic condemnation, perhaps President Obama can travel to London to condemn Prime Minister Churchill for allowing, in cooperation with President Roosevelt, British and U.S. bombers to drop hundreds of thousands of explosives on the German city of Dresden. According to a 14 February 1945 BBC broadcast,
Last night, 800 RAF Bomber Command planes let loose 650,000 incendiaries and 8,000lb of high explosives and hundreds of 4,000lb bombs in two waves of attack. They faced very little anti-aircraft fire. As soon as one part of the city was alight, the bombers went for another until the whole of Dresden was ablaze. “There were fires everywhere with a terrific concentration in the centre of the city,” said one Pathfinder pilot.
I invoke these historical examples not because they necessarily justify all of the policies pursued by the Bush Administration. But they do help place the Bush Administration’s policies within some kind of historical context. And by historical standards, the Bush Administration acted in ways that were far more respectful of the Constitution and the rules of war than virtually any other wartime President’s. Justice John Roberts, for example, wrote in his dissent in Boumediene v. Bush that the Bush Administration had put in place “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”
Indeed, in this entire debate, there is an astonishing lack of knowledge about history — for example, for how detaining captured enemy soldiers without charge or trail, until a conflict is over, is a traditional wartime authority; for how military commissions are traditional wartime tools that were used extensively in World War II, the Spanish-American War, the Civil War, the War of 1812, and the Revolutionary War; for how the traditional American view that the Geneva Conventions did not provide POW protections to combatants who fought out of uniform and failed to comply with the laws of war; for why the Geneva Conventions are provided to POW but not to groups like al Qaeda, in order to provide incentives for soldiers to follow the rules of war; and for why President Bush, in choosing Guantanamo Bay as the main detention site for terrorists, was doing what past Presidents had done. (All of this can be found almost verbatim from Professor Goldsmith’s excellent book, The Terror Presidency).
I don’t, for a moment, expect President Obama to be fair-minded in his appraisal of the Bush years. But one might hope he would resist the temptation to disfigure the past so blatantly and so repeatedly, especially since Obama fancies himself as America’s philosopher-king, a person astonishingly free of bias and ideology, a one-man antidote to finger-pointing and division, our great healer and forward-looking leader. Alas, Mr. Obama — who is, I will grant you, a man of prodigious political talents — is falling a good deal short of the standards he has set for public discourse.
I would add one other observation to what President Obama said today. In an important article in the New Republic, Professor Goldsmith writes
The new administration has copied most of the Bush [anti-terrorism] program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.
Professor Goldsmith methodically examines eleven essential elements of the Bush approach to counter-terrorism and concludes, “at the end of the day, Obama practices will be much closer to late Bush practices than almost anyone expected in January 2009.”
To take just one example, on the matter of habeas corpus, Goldsmith writes this:
During the campaign, former professor Obama spoke eloquently about the importance of habeas corpus review of executive detentions of enemy soldiers. Habeas corpus is “the foundation of Anglo-American law” and “the essence of who we are,” he said. But his administration has applied this principle in the same narrow fashion as the late Bush administration. It has argued that Guantanamo detainees can challenge the “fact, duration, or location” of confinement on habeas review, but not their “conditions of confinement.” It has maintained that “the Geneva Conventions are not judicially enforceable by private individuals” in habeas proceedings. And it has made clear its belief that the limited habeas rights it recognizes for the two hundred or so detainees on Guantanamo Bay do not extend to the 600 or so detainees in Bagram Air Base. This latter position might prove more controversial for President Obama than for President Bush. The new president’s enlarged military commitment in Afghanistan and Pakistan, combined with the forthcoming closure of Guantanamo, means that the number of suspects detained in Bagram — without charge or trial and without access to lawyers or habeas rights — is likely to increase, perhaps dramatically.
How exactly does President Obama square his policy of not extending even limited habeas rights to detainees in Bagram Air Base with, say, his speech today?
I look forward to an enterprising and, in today’s climate, an intrepid reporter asking this question, and insisting on an intellectually serious response.