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Obama’s Big Habeas Flip-Flop

Glenn Greenwald has a stunning article about Obama’s complete about-face on the issue of habeas corpus and enemy combatants. Habeas corpus is one of our fundamental rights, which says that a government cannot simply arrest you and toss you in jail without at least telling you for what you have been arrested and giving you a chance to protest your innocence. When you travel, habeas corpus is what protects you from the petty foreign official who decides he doesn’t like you and throws you in jail to rot.

This was a big issue during the presidential campaign, and Greenwald’s article has numerous quotes from Obama, but I’ll include just one short one that he said after the Supreme Court overruled the Bush administration and declared that enemy combatants do indeed have habeas corpus rights:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

Which is why it is extremely surprising that now that Obama has been elected president, his Justice Department is fighting tooth and nail to preserve the right to abduct anyone they don’t like and throw them in jail, without charges or any legal rights of any kind.

We aren’t talking about people captured on a battlefield here. These are people who were abducted from their homes or workplaces, transported to places like Guantanamo or Bagram, Afghanistan, and disappeared. And we know that at least some of them were innocent victims of mistaken identity, but without habeas corpus rights they had no way to resolve the mixup.

Ignoring for a moment whether you think the government should imprison suspected terrorists without any legal rights at all, this is a complete reversal for Obama. During the campaign, Obama repeatedly declared that:

abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Americans generally; and (f) a violent betrayal of core, centuries-old Western principles of justice. But today’s Barack Obama, safely ensconced in the White House, fights tooth and nail to preserve his power to do exactly that.

I and many other Obama supporters were dismayed during the election when Obama voted for the FISA bill to give retroactive immunity to telecoms for tapping the telephones of American citizens, in contradiction to his earlier promises, and I never felt like we received a reasonable explanation as to why he reversed his position. But reversing his position on habeas corpus is even more confusing.

Making this even worse is how quiet the mainstream media is being about this issue, even news organizations that reported this in the past. The Columbia Journalism Review has an article about the coverage (or lack thereof) on this issue.

Doesn’t one of our fundamental rights deserve more attention than this?



  1. Daniel wrote:

    “Doesn’t one of our fundamental rights deserve more attention than this?”

    Of course it does, but these are rights that the people themselves must insist on. One of the very subtle changes that has gone on in American society during the Boomer generation is is the elevation of the Constitution into some form of Holy Writ rather than a living expression of the people’s will. In fact, as stunning it may seem, the Boomer generation will be the first generation to never meaningfully amend the Constitution. Former generations lowered the voting age to 18, banned booze then unbanned it, changed who could be Senators, and so on. The legacy of the Boomer generation: a technical change to congressional pay.

    At it’s root a “right” is nothing more than a gift the people give to themselves. Unless we create that gift for ourselves, instead of treating it like so long lost family heirloom, the present set of conditions in the political environment will continue.

    Saturday, April 11, 2009 at 3:50 pm | Permalink
  2. Kevin wrote:

    “Doesn’t one of our fundamental rights deserve more attention than this?”

    The cynic in me wants to say that many (perhaps most) people are too scared to call attention to this since it’s the type of thing that might get them a one-way trip where habeas corpus for them is ignored and they’re never heard from again. The sad part is, I’m not sure that’s really cynicism and not healthy realism nowadays.

    Saturday, April 11, 2009 at 7:51 pm | Permalink
  3. Sammy wrote:

    I’m pretty new to this site, but I’m so happy to see that your ire can go both ways. As a moderate I find myself despising the left and the right most of the time. This is a good site.

    Monday, April 13, 2009 at 12:38 pm | Permalink