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Obama's National Security Speech

The following is the prepared text of President Obama's speech today on national security. You can also watch the speech live.

These are extraordinary times for our country. We are confronting an historic economic crisis. We are fighting two wars. We face a range of challenges that will define the way that Americans will live in the 21st century. There is no shortage of work to be done, or responsibilities to bear.

And we have begun to make progress. Just this week, we have taken steps to protect American consumers and homeowners, and to reform our system of government contracting so that we better protect our people while spending our money more wisely. The engines of our economy are slowly beginning to turn, and we are working toward historic reform of health care and energy. I welcome the hard work that has been done by the Congress on these and other issues.

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.

This responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

Already, we have taken several steps to achieve that goal. For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We are investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world's most dangerous people access to the world's deadliest weapons, and launched an effort to secure all loose nuclear materials within four years. We are better protecting our border, and increasing our preparedness for any future attack or natural disaster. We are building new partnerships around the world to disrupt, dismantle, and defeat al Qaeda and its affiliates. And we have renewed American diplomacy so that we once again have the strength and standing to truly lead the world.

These steps are all critical to keeping America secure. But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall - the Declaration of Independence, the Constitution, the Bill of Rights -are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words - "to form a more perfect union." I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never - ever - turn our back on its enduring principles for expedience sake.

I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and keeps us safe. Time and again, our values have been our best national security asset - in war and peace; in times of ease and in eras of upheaval.

Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.

It is the reason why enemy soldiers have surrendered to us in battle, knowing they'd receive better treatment from America's armed forces than from their own government.

It is the reason why America has benefited from strong alliances that amplified our power, and drawn a sharp and moral contrast with our adversaries.

It is the reason why we've been able to overpower the iron fist of fascism, outlast the iron curtain of communism, and enlist free nations and free people everywhere in common cause and common effort.

From Europe to the Pacific, we have been a nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and institutions are more resilient than a hateful ideology.

After 9/11, we knew that we had entered a new era - that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out.

Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions. And I believe that those decisions were motivated by a sincere desire to protect the American people. But I also believe that - too often - our government made decisions based upon fear rather than foresight, and all too often trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, we too often set those principles aside as luxuries that we could no longer afford. And in this season of fear, too many of us - Democrats and Republicans; politicians, journalists and citizens - fell silent.

In other words, we went off course. And this is not my assessment alone. It was an assessment that was shared by the American people, who nominated candidates for President from both major parties who, despite our many differences, called for a new approach - one that rejected torture, and recognized the imperative of closing the prison at Guantanamo Bay.

Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable - a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass. And that is why I took several steps upon taking office to better protect the American people.

First, I banned the use of so-called enhanced interrogation techniques by the United States of America.

I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What's more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts - they undermined them, and that is why I ended them once and for all.

The arguments against these techniques did not originate from my Administration. As Senator McCain once said, torture "serves as a great propaganda tool for those who recruit people to fight against us." And even under President Bush, there was recognition among members of his Administration - including a Secretary of State, other senior officials, and many in the military and intelligence community - that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. We must leave these methods where they belong - in the past. They are not who we are. They are not America.

The second decision that I made was to order the closing of the prison camp at Guantanamo Bay.

For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of Military Commissions at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setbacks, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over five hundred and twenty-five detainees were released from Guantanamo under the Bush Administration. Let me repeat that: two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.

There is also no question that Guantanamo set back the moral authority that is America's strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. Indeed, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law - a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

So the record is clear: rather than keep us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That is why I argued that it should be closed throughout my campaign. And that is why I ordered it closed within one year.

The third decision that I made was to order a review of all the pending cases at Guantanamo.

I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we do not have the luxury of starting from scratch. We are cleaning up something that is - quite simply - a mess; a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis, and that consumes the time of government officials whose time should be spent on better protecting our country.

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall - when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.

There are no neat or easy answers here. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience.

Now, over the last several weeks, we have seen a return of the politicization of these issues that have characterized the last several years. I understand that these problems arouse passions and concerns. They should. We are confronting some of the most complicated questions that a democracy can face. But I have no interest in spending our time re-litigating the policies of the last eight years. I want to solve these problems, and I want to solve them together as Americans.

And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I've heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing, and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold dear. And I will focus on two broad areas: first, issues relating to Guantanamo and our detention policy; second, issues relating to security and transparency.

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders - highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational."

We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them. As we do so, we are acutely aware that under the last Administration, detainees were released only to return to the battlefield. That is why we are doing away with the poorly planned, haphazard approach that let those detainees go in the past. Instead, we are treating these cases with the care and attention that the law requires and our security demands. Going forward, these cases will fall into five distinct categories.

First, when feasible, we will try those who have violated American criminal laws in federal courts - courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear. Ramzi Yousef tried to blow up the World Trade Center - he was convicted in our courts, and is serving a life sentence in U.S. prison. Zaccarias Moussaoui has been identified as the 20th 9/11 hijacker - he was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee - al-Marri - in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania - bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.

The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.

Now, some have suggested that this represents a reversal on my part. They are wrong. In 2006, I did strongly oppose legislation proposed by the Bush Administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process and rights for the accused that could stand up on appeal. I did, however, support the use of military commissions to try detainees, provided there were several reforms. And those are the reforms that we are making.

Instead of using the flawed Commissions of the last seven years, my Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms - among others - will make our Military Commissions a more credible and effective means of administering justice, and I will work with Congress and legal authorities across the political spectrum on legislation to ensure that these Commissions are fair, legitimate, and effective.

The third category of detainees includes those who we have been ordered released by the courts. Let me repeat what I said earlier: this has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved fifty detainees for transfer. And my Administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These issues are fodder for 30-second commercials and direct mail pieces that are designed to frighten. I get it. But if we continue to make decisions from within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future. I have confidence that the American people are more interested in doing what is right to protect this country than in political posturing. I am not the only person in this city who swore an oath to uphold the Constitution - so did each and every member of Congress. Together we have a responsibility to enlist our values in the effort to secure our people, and to leave behind the legacy that makes it easier for future Presidents to keep this country safe.

The second set of issues that I want to discuss relates to security and transparency.

National security requires a delicate balance. Our democracy depends upon transparency, but some information must be protected from public disclosure for the sake of our security - for instance, the movements of our troops; our intelligence-gathering; or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

Several weeks ago, as part of an ongoing court case, I released memos issued by the previous Administration's Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, or because I reject their legal rationale - although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush Administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos, we are providing terrorists with information about how they will be interrogated is unfounded - we will not be interrogating terrorists using that approach, because that approach is now prohibited.

In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and held accountable. There is no debate as to whether what is reflected in those photos is wrong, and nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment - informed by my national security team - that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.

In each of these cases, I had to strike the right balance between transparency and national security. This balance brings with it a precious responsibility. And there is no doubt that the American people have seen this balance tested. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq War or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. That causes suspicion to build up. That leads to a thirst for accountability.

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued - and never will - that our most sensitive national security matters should be an open book. I will never abandon - and I will vigorously defend - the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions - by Congress or by the courts.

We are launching a review of current policies by all of those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers - especially when it comes to sensitive information.

Along those same lines, my Administration is also confronting challenges to what is known as the "State Secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents - Republican and Democrat - for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.

We plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the State Secrets privilege. We will not assert the privilege in court without first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.

On all of these matter related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.

In all of the areas that I have discussed today, the policies that I have proposed represent a new direction from the last eight years. To protect the American people and our values, we have banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming Military Commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and narrowing our use of the State Secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer and more sustainable footing, and their implementation will take time.

There is a core principle that we will apply to all of our actions: even as we clean up the mess at Guantanamo, we will constantly re-evaluate our approach, subject our decisions to review from the other branches of government, and seek the strongest and most sustainable legal framework for addressing these issues in the long-term. By doing that, we can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that; a legacy that protects the American people, and enjoys broad legitimacy at home and abroad.

That is what I mean when I say that we need to focus on the future. I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November. And I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants - provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: if we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for those core values, then we are not keeping faith with the documents that are enshrined in this hall.

The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last two hundred and twenty two years. But our Constitution has endured through secession and civil rights - through World War and Cold War - because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way. It hasn't always been easy. We are an imperfect people. Every now and then, there are those who think that America's safety and success requires us to walk away from the sacred principles enshrined in this building. We hear such voices today. But the American people have resisted that temptation. And though we have made our share of mistakes and course corrections, we have held fast to the principles that have been the source of our strength, and a beacon to the world.

Now, this generation faces a great test in the specter of terrorism. Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and - in all probability - ten years from now. Neither I nor anyone else can standing here today can say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my Administration - along with our extraordinary troops and the patriotic men and women who defend our national security - will do everything in our power to keep the American people safe. And I do know with certainty that we can defeat al Qaeda. Because the terrorists can only succeed if they swell their ranks and alienate America from our allies, and they will never be able to do that if we stay true to who we are; if we forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals.

This must be our common purpose. I ran for President because I believe that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America - it can and must be a cause that unites us as one people, as one nation. We have done so before in times that were more perilous than ours. We will do so once again. Thank you, God Bless you, and God bless the United States of America.


54 Comments

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You know, he's saying all of the right things. But, he has left progressive & seemingly has embraced GB's policies.

So, until there is an alternative action that embraces the rule of law, I am skeptical.

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Huh?

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The President did a good job of taking on the political opposition with his explanations, stopping just short of saying, "I am the President and Dick Cheney is an ass; now stop listening to him". I think that pretty much came across, though.

However, Dick will, I am positive, receive as much attention in the next 24-hour news cycle as the President does, in that "He said/She said" way that they do so well. If not more. Because we all know for whom the media is "wired", don't we?

Coupla things:

This responsibility is only magnified in an era when an extremist ideology threatens our people...

Am I the only one who, upon getting to that sentence, did not immediately think of swarthy Muslims?

Yep, call me a "blame America first"-er. But that would assume that Dick Cheney = America. I am NOT willing to make that leap, thank you.

That Obama does not preach openly against the extremist ideology of the neocons, naming names and being specific about it, is a mistake in my opinion. Only the bully pulpit is strong enough to push these people back. Just because their Republican enablers are not currently in office, does not necessarily mean they're not planning their next comeback (how many years did they wait patiently, after the Nixon and Ford administrations, to regain their hold on policy?).


And I believe that those decisions were motivated by a sincere desire to protect the American people.


This is where I gotta wonder if the Harvard-educated President is stupid. Or, just thinks that this is what the proles want to hear, about anyone they've ever elected to power, good or bad.

Anyone with a rudimentary knowledge of said neocons... or, who wasn't asleep during the drumbeat leading up to the Iraq War... knows that a lot of qualities can be attributed to these operators. "Sincerity" isn't one of them. Reference: "smoking gun/mushroom cloud"; "weapons of mass destruction". I think you get the point.

And again, I do not believe it serves the President or our country, to keep hyping the fiction that all administrations are just God-fearing, American patriots, trying to do the right thing in the way they see fit.

What a load of horseshit. And if Obama wants to "lead", he needs to, at long last, dispense with the usual horseshit. This is a new electorate, new demographics, new century. The people of this country elected a President this time around, out of knowledge, not fear.

But I fear that Obama, to a great extent, is still preaching fairy tales to the fearful, when he panders to our sense of American exceptionalism like this. I understand he got mega-pissed yesterday, at a private meeting with progressives, who gently read him the riot act on his "Bush"-like policy moves. He truly believes he knows what he's doing, and he doesn't appreciate static from any amateurs, who are un-focused enough to object to the damage he's doing, by capitulating to Beltway wisdom.

This is a political calculation on his part: he simply cannot bring himself to believe that if his administration, on critical issues of war and Constitutionality, turns out to be Bush Lite, that the Left won't stay home in 2012 and just not bother.

Okay. Whatever.

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How can Obama talk about the vital importance of following and adhering to the rule of law while at the same time allowing the previous administration to get away with breaking it?

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I think he makes it clear that there are processes in place, through DOJ, and Congress, to investigate and prosecute. There are limits to the power of the President. Here in America we tend to avoid angry mobs carrying torches.

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OK, let me rephrase that.

How can current DOJ represent the vital importance of following and adhering to the rule of law if they allow the previous administration to get away with breaking it?

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Who says they are allowing the previous administration to get away with it? The point is, DOJ is the rightful executive branch agency to investigate and prosecute. Congress can do the same, which is who Dickhead is appealing to on his Magical Torture Tour.

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Obama was elected President of the United States, not Dictator. He cannot just order the Justice Department to prosecute certain individuals. That's what the Bush Administration tried to do.

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As a Justice Department attorney, can I comment here? I listened to the speech live, and I had my ear tuned to the particular issue of whether President Obama would embrace the concepts of "moving forward" and "focusing on the future" as springboards from which he could declare that we will not seek to prosecute violations of the law by the previous Administration.

He certainly could have made such a forceful declaration. This was without question in my mind one of the most powerful speeches Obama has made, not only on National Security, but on any matter since becoming President. And I think it was so powerful because it laid out a clear outline of principles for how we will proceed. Shorter Obama: This is the framework, this is how what I have done fits into this framework, and this--this--is how we are going to proceed.

And it was because of his confidence that this framework was right in the context of our American values that he could lay down some brickbats on both sides. Which he did. I heard a level of determination that some could hear as being mixed with a bit of pique over the political silliness of the last few weeks.

He mixed what I think can only be described as steely determination with eloquent and diplomatic language. For instance, he forcefully declared that we will close the prison at Guantanamo --without any hesitation or reservation. And the message between the lines was, hey, you scardey-cat and illogical Congress critters can sort of suck it if you think otherwise. So he took some in his own party to task in that measured, reasoned way that is becoming Obama's hallmark.

But here's the point: I did not hear such foreclosure with regard to possible prosecutions. Key passage:

I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

That passage packs a significant amount of punch. A significant amount. Some will see this as an abandonment of a Truth Commission (which he never wanted), and thus an abandonment of the idea at getting at the truth. But I think the President only rejected a Truth Commission as a matter of process because he believes it can be addressed elsewhere (and probably because the idea of establishing such a commission in such a charged atmosphere would be tantamount to--if I may mix metaphors for a moment--ringing the dinner bell on a three-ring circus in this town).

Now, i know some will say, yes, but maybe he wants to rule out a truth commission because he can't effectively kill a truth commission, but he can tamp down prosecution if it is led by a department of the executive branch. I think that is a cynical view.

I think the President respects, and wants to restore, the Department of Justice to its rightful place: as representatives of the American people in the cause of justice in defense of the Constitution, and not, as it has been for the last 8 years, a law firm acting at the beck and call of the White House for the purpose of covering up, excuse me, a lot of ass. Those days are gone. I can see it from here, where I sit, on the inside.

So, for President Obama to make that statement--he Department of Justice and our courts can work through and punish any violations of our laws--he is not shutting the door on prosecutions. He could have shut the door. But he did not. He's going to let this Department--a group of attorneys who cherish independence--look into it (and I think it is safe to say it is already looking into it, at least where OPR is concerned.).

That's what I took from Obama's speech.

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Thanks Lars. I really appreciate your perspective. I don't want the investigations politicized and have hoped that the door would be open for a "non-politicized" DOJ investigation. I don't believe Congress can handle this--they are too splintered and immature. Don't know what area you cover for Justice, but I'm glad you're there. Makes me feel better about things. Cheney's desperate clawing at the door is clearly his attempt to sway Congress. He has NO control over DOJ. Ah, that felt so good to say.

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You can grasp at the glimmer of hope he provided for following the law regarding the war crimes we know were committed or you can look at the totality of the speech and see that he is saying one thing and doing quite another in many respects. Much of his "pique" is at being questioned and so he uses the worst sort of right wing/cold warrior smears to lump together legitimate calls for the rule of law to be obeyed with lawless advocates of torture and other crimes. This speech was filled with political distortion and dishonesty from start to finish. I pray I'm wrong, but know I'm right.

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Oleeb, you are ALWAYS right, and you know it.

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See above, where I said that Obama has his view of how to manipulate things politically, and he doesn't appreciate any amateurs, second-guessing him.

In the ego department, there's really no difference between that, and Bush. Bush was just less articulate and more in-your-face obnoxious about it.

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So your point is that Obama is a politician? Well, of course he is. Obama likes to take the high ground because he knows that we know what the neocons are all about. I like that he doesn't have to state the obvious--that he respects our intelligence. I know that drives some people crazy--when he retreats from direct confrontation--but I think it has worked well for him. He is far more patient than we are. Somewhere on this site a while back someone referred to his use of a rope-a-dope strategy. I'm willing to bet he has far more planned on this than he is letting us know. He doesn't put all his cards on the table.

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Well, it won't work forever. Telling the people what they want to hear, eventually must give way to managing the store the way that we, his "bosses", recruited him to do so.

We see what he's doing: attempting to dispose of each individual "problem". or prisoner, without creating any codification of an actual change in Bush "legal" policy.

I'm sorry, but this too-clever-by-half way around the situation is NOT what the voters, who quite clearly know how these issues work nowadays, expected of him when we put our trust in him.

And furthermore, if you think his stand today against generic criticism (as opposed to name-checking Cheney, as the congressional Democrats he is leaving to do so have no problem doing) will only blunt that critcism... in your dreams. The MSM will give the neocons as much wattage as they want, and President Pragmatic will always end up looking like a President "under siege".

You'll see.

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I don't give a rat's ass what the MSM says about anything. I don't pay attention to it. You can't speak for all the voters. Maybe he's not doing what you thought he would, but he's coming pretty close to what I expected. And for that I am grateful. Now, either you then find me as despicable as you find him, or I was paying closer attention and you voted for the wrong guy.

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Well, I hardly find you, or President Obama, "despicable", but I'm surprised that you "expected" Obama to say he was going to close Gitmo, and then reverse himself about normalizing the rule of law, with regard to our political prisoners. You're pretty prescient, actually! I doubt any of the rest of us "expected" all this backtracking.

And I think I speak for all of us here, when I say this one blindsided us. But I do not presume to speak for all the voters.

Dick Cheney speaks for all of the voters. I mean, really. A child of six would know that; get with the program.

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You need to make your case more cogently. I find you a little hard to follow. I believe Obama reiterated his intent to close Gitmo today. It's Congress who is in the way. Get on the phone and call your reps. I have. Start working on Congress and stop obsessing over Obama. If you don't like him, that's all fine. So put your pressure on your reps. Be constructive instead of destructive. Things work better that way.

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I know it's frustrating for you Kate. You'll just have to trust me when I say I'm not simply being a cynic and I'm not simply being a naysayer regarding our President. I am extremely disappointed that he has been so two faced about the rule of law, transparency and open government after saying those three things would be the hallmark of his Presidency. Let me tell ya something though. I pray to God I am wrong about Obama because if I am right his decisions are going to be very damaging to our country not only now but for many years to come, but all my experience and observation of politics and politicians over many decades tells me I am correct. He is, after all, nothing but another politician.

I will not be at all hesitant to admit that I was wrong if that turns out to be the case, but I honestly believe the chance of that is almost nonexistent. Politics and government is what I do and I've seen all of these shenanigans before in a variety of different contexts and settings. I am very familiar with how these people operate because sometimes I am one of them though I have never and would never be a part of the sort of thing the President is now engaged in regarding the mythical "war on terror."

In any game there are only so many moves so when you play the game you get to know them and what it means when they're made and what it means is probably coming next. I know from the inside how it all works and how politicians work people like yourself and the general public and manipulate the way they respond ion addition to how they convinces themselves that even though what they are doing is not honest or true, they are justified, etc... It's extraordinarily hard to resist the temptation to fool the public and to fool one's self in such situations. That's why I say I know I'm right. I honest to God wish I wasn't.

So please, when it turns out that the President and his adminstration does the right thing about the investigation of war crimes, please be the first to point out to me how wrong I was. I'll be overjoyed to acknwledge my error/errors in judgment. In the meantime though, you watch what the President actually does and see if we don't end up sometime in the fall (just a guess on the timing but sometime within the next year) with a recommendation from DOJ that says we need to "move forward" and that there is no need to investigate the war crimes that occured in any great detail and certainly not to prosecute any of the "mistakes" that are not true to our values.

Just as a hint, always be wary once any politician starts using vague euphemisms to describe very specific things or events. They avoiding the truth when they do that. Sometimes (rarely) for good reason, but always for politically convenient reasons. Be particularly wary when they start doing that after having been very specific in the past when talking about them such as mysteriously no longer being able to say the word "torture" in describing torture but instead only saying "enhanced interrogation techniques" or "harsh techniques." Another example is when they no longer are willing to call something what it plainly is. For example when a blatant "crime" becomes a "mistake". There are plenty of other easily identified tell tale signs of the rebranding of the Bush policies on all the subjects the President addressed today. But the President is attempting to have his cake and eat it too. What was bad under Bush is just as bad under Obama, but he's trying to tell the public that isn't so. Many will buy this bill of goods, but it's a sham and a fake out meant to buy time and manipulate the good will of many in the public willing to give him the benefit of the doubt. Once those who he has manipulated realize what happened it will be too late and there will be other issues that overshadow these things.

Again, we'll see how it all turns out and I'll be happy to admit my error in the unlikely event Obama turns out to obey the law on war crimes, etc...

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I've worked "inside Washington" for 27 years for two Administrations and several Congresses, in a variety of capacities,so I know how it works.... Perhaps not with the same bravado as you. I'm an optimist; you're a pessimist. I like Obama after what I have seen "inside Washington" for almost three decades. You don't like him. So we will just have to agree that we both probably know what we're talking about and I doubt either one of us is entirely right. I'm also not looking for a savior. I'm just looking for a good leader with good intentions. It seems that those who accuse Obama supporters of being Koolaid drinkers are the first to accuse him of not behaving like he's the second coming of Christ.

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While I respect your viewpoint and understand where you're coming from, if you have that kind of experience then you should be ashamed of your willingness to believe such transparent falsehoods and to pay deference to such cheap political tricks. I have a hard time believing any political professional can look at what is going on and fail to recognize it for what it is. You should know how disingenous and cynical all this flip flopping is. Many have an excuse for falling for the thin excuses and time honored flim flams Obama has offerered on this subject because they are just observers, but anyone who has been in the system for that long and still falls for it does not. It's precisely this sort of myopic worldview that got us in the Iraq war.

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You are far too presumptuous. I hope you are young, and that's your excuse for your self righteousness. I am ashamed of nothing.

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Good post. According to some here, it's practically illegal for Obama to "open" or "close" any doors! As Glenn Greewald says today: "Like all political officials, Obama should be judged based on his actions and decisions, not his words and alleged intentions and motives. Those actions in the civil liberties realm, with some exceptions, have been profoundly at odds with his claimed principles, and this speech hasn't changed that. Only actions will."

If Obama's DOJ does not appoint a Special Prosecutor (and soon!) to fully investigate alledged violations of law by Bush administration officials then, IMO, everything crumbles. Just saying "we abide by the rule of law" means nothing.

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"If Obama's DOJ does not appoint a Special Prosecutor (and soon!) to fully investigate alledged violations of law by Bush administration officials then, IMO, everything crumbles."

What exactly do you mean by "everything crumbles"? The DOJ is rendered a sham and can never do anything just again? The government collapses? The oceans turn to blood?

No disrespect but....I think this is a good representation of some of the absolutist thinking Obama mentions.

Look, I also want to see the use of torture investigated (and prosecuted). It is clearly the ideal for the long term interests of the country. In the near term, however, an investigation would tear the country apart and make the multiple emergencies we currently face in the economy, afghanistan, healthcare, etc worse. I think action on these matters takes precedence, and I think the president is of the same mind. This is the point at which reasonable people can disagree.

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What exactly do you mean by "everything crumbles"?


I mean that saying we are a nation of laws not men, that we uphold the rule of law and that noone is above the law are rendered meaningless. Everything sort of falls and collapses from there.

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What exactly do you mean by "everything crumbles"?


I mean that saying we are a nation of laws not men, that we uphold the rule of law and that noone is above the law are rendered meaningless. Everything sort of falls and collapses from there.

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I'm interested in the statement:

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

and then goes on to say

I am not going to release individuals who endanger the American people.

That sounds like something which will require new legislation. Or am I wrong?

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Except Eric Holder will not prosecute. His own hands are too dirty, going back to the Clinton administration.

Forget a "truth commission," which is next-to-useless anyway. Appoint a special prosecutor and remove it from the political realm as much as possible.

Since Nixon, American presidents have always seemed to treat Justice as a subservient branch. The fact that Obama is even trying to assert the direction of any future potential investigation is telling in that regard. It's not his decision to make.

Ultimately, the reason that prosecutions are off the table is that wealth and privilege benefits whomever's in power -- the conservative corporatist agenda is too entrenched to fight anymore even at the highest levels, even if a president wanted to. And there's no evidence beyond pretty, empty rhetoric that President Cheney, his puppet Obama or his puppet Holder want anything of the kind.

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Because he is being a hypocrite.

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The money quote for people who want prosecutions and/or punishment for torture:

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

He's saying it is improper for the president to initiate criminal investigations or prosecutions. That's why the U.S. Attorney firing scandal--remember that?--was a scandal. And, just as importantly, the president must avoid even the appearance of trying to initiate or encourage investigations and prosecutions because if he did, it would instantly politicise and taint the process, probably to the point of making it impossible to take the matters to trial.

But just as it would be improper for him to initiate, endorse or encourage investigations, it would also be improper for him to try to block them, and he's not.

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But just as it would be improper for him to initiate, endorse or encourage investigations, it would also be improper for him to try to block them, and he's not.


Yes, that's true. It's been disappointing to see that the pictures are not going to be released. And, I understand, I understand...the wheels of justice turn to slowly, at times. I would prefer the pictures be released and that the US investigate & prosecute war crimes. I don't want to see another country prosecute.

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"Individuals who violated standards of behavior in these photos have been investigated and held accountable."

From the above speech. Americans shown in these photos have been investigated. What is your point?

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Hear hear. A little civics lesson in the the powers of the three branches of government might be in order for everyone.

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When President Obama says we "..must look forward, not backward.." isn't he encouraging/suggesting the DOJ *not* to investigate the Bush administration? (Of course, the DOJ doesn't need to follow his lead).

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President Obama is the executive and he is going to look forward--a position that the majority of Americans agree with.

This does not stop DOJ or any group functioning through Congress. the investigations rightfully belong there.

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My suspicion--which this speech reinforced--has always been that a decision was made early on that it was critical, both politically and for the sake of the long term health of the system, to make sure that no one could ever credibly claim that any investigations or prosecutions that happen were politically motivated.

To that end, I think they decided they had to build a record (a familiar concept to any lawyer) demonstrating that any prosecutions or investigations that happened, happened despite what the White House wanted, not because of it. And if that's what you're doing, then you have to make damn sure that there's nothing that looks like winking and nodding in it, right up to an including grabbing the mike away from the AG in a meeting with civil liberty and human rights types to say you don't want them.

My supposition--and that's all it is--is based on my basic tendency to give him the benefit of the doubt when I'm judging his actions yet, at the same time, assumes a degree of sophistication in manipulating public perception that some might deem incompatible with an assumption of good intentions. I realize that my supposition is exactly the kind of thing derided as "3D chess" by those who are inclined to view his actions through the same presumption of malice we learned to apply to Bush.

Everyone brings their own assumptions to the analysis of news. I don't necessarily claim mine are more likely to lead to the truth than anyone else's, but at least I know what mine are.

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"...I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability."

He is not just refraining from endorsing criminal investigations. An independent commission à la 9-11 commission is not a criminal investigation. He is against anything that "can distract us from focusing our time, our effort, and our politics on the challenges of the future". An independent commission would be the LEAST distracting way of doing that. Justice Dept. investigations would be much more politically charged. Leaving it up to Congress just buries it.

Not good.

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Then we need to address either the perception or the reality that Congress fails in its reponsibilities. This failure means that Congress is broken and that does not protect us from a security standpoint or from the standpoint of constitutional rights and freedoms.

Listen up, Senate!

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In your opinion, a commission would be the least disruptive way. Can't you at least agree that reasonable minds can differ on that point?

I think a commission could be the least disruptive way, theoreticaly, but only if enough Republicans participated in the process in good faith. I can't picture that happening.

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Steve, I always find you eminently reasonable though I often disagree when it comes to Obama's intentions and tactics. On this issue it seems there are several separate values that need to be weighed:
1. What is the importance of getting the law enforced on torture, war crimes, etc?
2. What is the importance of getting all the facts laid out in a public report?
3. What is the most efficient way of doing these things?
4. What is the least politically distracting way of doing these things?
5. What is the procedure that ensures the broadest appearance of objectivity?

If we now close the door on an independent bi-partisan commission, and Congress can't be trusted to investigate inter alia itself seriously, then all we can hope for is DoJ criminal investigations by Obama appointees. It would be highly politically charged whatever 'detached' or impartial noises Obama makes now. Whatever he has in mind, these noises aren't part of any 'strategy' for getting the ball rolling on actually facing up to what happened under Bush.

I think you could pressure the Republicans to get on board with a commission as long as the investigation is broad enough, given their recent wailing about Pelosi. It could even include an examination of the Clinton administration practices (renditions, etc).

In any case, Obama closing the door on a commission doesn't help.

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Well, I think Lars would disagree with you about how things would go down at DoJ, anyway. But what how can we trust him? He menaced an incapicated Jimmy Stewart and then, to add insult to injury, constantly made a fool of hapless D.A. Hamilton Burger in the courtroom.

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Hadn't seen Lars' comment. Thanks. It's encouraging.

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"We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes."

Dueling strawmen?

Where, within this spectrum, is allowance made for those who insist that the U.S. honor its treaty obligations and investigate/prosecute those who may have tortured and/or committed war crimes?

I love the references to the Constitution and "rule of law" in this speech. So where does Article Six fit in.....

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

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I think someone above posted his response to investigating: it should go through Congress (some investigations are already underway) and DOJ.

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It's a half-hearted nod, at best, made even as he talks about not wanting to relitigate the past eight years. That's not his call to make, it's Attorney General Holder's.

He also has conveniently failed to identify one powerful group of stakeholders in this process...those who aren't opposed to relitigating the past eight years so long as it doesn't get in the way of health care reform, or a new energy policy.

I know that it's difficult to put 48 million uninsured and climate change on one side of the scale, and an obligation to investigate torture in order to honor "the supreme law of the land" on the other. But if we have to, we have to.

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and who would almost never put national security over transparency

...and this is bad why?

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Damn.

Measured, intelligent, comprehensive and

Correct

For a change.

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The real grown-up.

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I am happy to see Obama address the fear card being played by the Republicans. Every time Cheney speaks I am angered to tears because he is still telling Americans to be fearful. The Bush administration has destroyed an important characteristic of the American people: courage. We have been told repeatedly that we should feel threatened and afraid; we have been brainwashed by Cheney into becoming cowards.

I think of Al-Qaeda laughing at us for being scared to bring a terrorist onto American soil in chains. How proud they must feel! And how it must bolster their recruitment to brag that they have exposed the true cowardice of the U.S.

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Question to President Obama:

According to you the Justice System is everything that is sufficient and necessary to deal with terrorists,if so then:

How come that your friend, Bill Ayers, has never served time in jail?

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It isn't complicated to explain. If you commit crimes in order to gather evidence then it can't be used to convict. FBI either didn't care about convicting Ayers or they were just incompetent.

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So there are three things in this speech that jumped out to me as important in the sense of giving us new information about actual policy.

Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders - highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational."

This was the first thing I was looking for in this speech: Once Guantanamo closes, where will the detainees go? And this is the answer: There will be terrorist suspects imprisoned in the United States itself, regardless of Harry Reid. This is significant to see stated outright after two weeks of the Republicans preemptively pushing back against this exact point. Hopefully the strong language here will embolden those who are claiming the normal prisons can in fact hold terrorists, like Levin or Feinstein.

The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war.

Maybe I missed something but this seems to answer a question left unanswered in the administration's military commissions announcement from last Friday: Why are we using military commissions at all? What constructive purpose could they actually serve? Why try some suspects under military commissions and some under the U.S. courts? We seem to have an response here: The U.S. courts will be used to try people who violated the laws of the U.S.; the commissions will be used to try the people who violated the laws of war. (Of course, one thing I wonder-- if we're trying them under the rules of war, does that imply they are now POWs?) This at least makes sense, but is it adequately justified? What would be an example of a case where the "law of war" we'd be prosecuting a detainee under would not be "feasible" for prosecution under U.S. law?

I don't think it's really workable to oppose these commissions, as some already have, on the no-exceptions bright-line grounds that it is never under any circumstances acceptable to try someone captured as part of a war effort under a military commission. I'm not sure such a claim even makes sense, and such a tactic seems to be just giving the administration an excuse to ignore us. But we have to recognize that the administration is doing something sketchy here and watch out for a situation where they're only going for the commissions because they don't think their evidence is strong enough to get a conviction in a court with fair rules. The administration needs to explain a lot more about its rationale here.

This on the other hand there doesn't seem to be any particular defense for:

We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States... However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category

The second part makes no sense. How can you create a "defensible and lawful" standard for imprisoning someone that you can't charge with any crime? The entire point of the law is that you don't do such things. How can you create a system for denying the very definition of the rule of law in a way that is in line with the rule of law? What Obama is facing here is a political reality: There surely will be people in Guantanamo who will "return to the battlefield" after being released, but who have evaded anything that can be charged as a crime. Obama is going to have a hard time letting people go knowing there are people in this category; the existence of these people is what the Republicans are using to justify opposing releasing anyone from Guantanamo at all ever, and the left is more interested in policing the purity of Obama's decisions than in creating political space to make difficult decisions like that easier. But the solution he's proposing to cut this particular baby in half just seems like gibberish. How can this work?

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The second part makes no sense. How can you create a "defensible and lawful" standard for imprisoning someone that you can't charge with any crime?


Prisoner of war

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Uh... C+ for effort, but... fail.

When Bush supporters used to justify Bush/Cheney detention policies by arguing that it's normal for "Prisoners of War" to be held without trials, that argument was deeply misleading. And it's no less misleading when made now by Obama supporters. That comparison is patently inappropriate for two reasons: (a) the circumstances of the apprehension, and (b) the fact that, by all accounts, this "war" will not be over for decades, if ever, which means -- unlike for traditional POWs, who are released once the war is over -- these prisoners are going to be in a cage not for a few years, but for decades, if not life.

Traditional "POWs" are ones picked up during an actual military battle, on a real battlefield, wearing a uniform, while engaged in fighting. The potential for error and abuse in deciding who was a "combatant" was thus minimal. By contrast, many of the people we accuse in the "war on terror" of being "combatants" aren't anywhere near a "battlefield," aren't part of any army, aren't wearing any uniforms, etc. Instead, many of them are picked up from their homes, at work, off the streets. In most cases, then, we thus have little more than the say-so of the U.S. Government that they are guilty, which is why actual judicial proceedings before imprisoning them is so much more vital than in the standard POW situation.

Anyone who doubts that should just look at how many Guantanamo detainees were accused of being "the worst of the worst" yet ended up being released because they did absolutely nothing wrong. Can anyone point to any traditional POW situation where so many people were falsely accused and where the risk of false accusations was so high? For obvious reasons, this is not and has never been a traditional POW detention scheme.

During the Bush era, that was a standard argument among Democrats, so why should that change now? Here is what Anne-Marie Slaughter -- now Obama's Director of Policy Planning for the State Department -- said about Bush's "POW" comparison on Fox News on November 21, 2001:

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

As for duration, the U.S. government has repeatedly said that this "war" is so different from standard wars because it will last for decades, if not generations. Obama himself yesterday said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this "war" "a year from now, five years from now, and -- in all probability -- 10 years from now." No rational person can compare POW detentions of a finite and usually short (2-5 years) duration to decades or life in a cage. That's why, yesterday, Law Professor Diane Marie Amann, in The New York Times, said this:

[Obama] signaled a plan by which [Guantanamo detainees] — and perhaps other detainees yet to be arrested? — could remain in custody forever without charge. There is no precedent in the American legal tradition for this kind of preventive detention. That is not quite right: precedents do exist, among them the Alien and Sedition Acts of 1798 and the Japanese internment of the 1940s, but they are widely seen as low points in America’s history under the Constitution.

There are many things that can be said about indefinitely imprisoning people with no charges who were not captured on any battlefield, but the claim that this is some sort of standard or well-established practice in American history is patently false.

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