Is Jon Stewart Right about a Betrayal by Obama? Not So MuchJon Stewart is a great comedian. Like most comedians, his humor works when it strikes a cord that rings true, even if he uses an absurd way to get there. But his main job is to make us laugh, not to report facts accuracy. I’ve been recording his show for years and think he’s great.
So I’m really reluctant to write this post about Stewart’s 8-minute rant on Obama last night -- I'm far to young to engage in a "Get Off My Lawn" rant. And it was clear that in the end, his rant was really about setting up a sight gag to suggest Obama was Frodo, and Sarah Palin was Gollum, and the ring was presidential authority. But I’ve seen several posts and tweets taking it seriously, gleefully gloating about it. If it is going take hold as truthful, then I guess I can’t resist taking the bait.
Stewart's big theme is that Obama has betrayed us out of a thirst for power. The straw man is Obama premised his entire campaign on reining in presidential power, but as president, has instead pursued executive power as aggressively as, if not more so than, his predecessor George Bush on the following issues:
- Gitmo. Obama signed an executive order to close Gitmo, but the relocation of the prisoners requires funding from Congress, and Congress has blocked his efforts. Is it fair to say this blocking by Congress, including by members of his own party, constitutes an Obama power-motivated betrayal? I don’t see it.
- Habeas Corpus. Stewart showed a clip of The Nation’s Chris Hayes stating that while detainees who are U.S. citizens in Gitmo (a U.S. military base) are entitled to habeas corpus to seek a court appeal of their detention, the DC Circuit Court decided that non-U.S. citizen detainees held at Bagram Airfield in Afghanistan are not entitled to habeas corpus, even if they were captured at foreign locations other than Afghanistan and brought to Bagram. This was not an Obama administration decision (although it is the position the administration argued for in court). The court made a distinction between what process is due a U.S. citizen detainee at a US facility outside the theater of war, versus a foreign detainee in the theater of war. Stewart then tried to illustrate (with props!) that Obama played a shell game with detainees by transferring them from Gitmo, where they have rights, to Bagram, where they don’t. Stewart makes this up – there’s been no such shell game involving Gitmo transfers to Bagram to end-run habeas corpus. Obama supported the Supreme Court decision, Hamdi v. Rumsfeld, that established Gitmo detainees who are U.S. citizens have habeas corpus rights (unlike John McCain, who Stewart fawns over as a frequent guest).
- Renditions. Every modern president, including the last Democratic president, Bill Clinton, has used this authority. The context of Obama’s opposition was the Bush practice of using it to transfer prisoners to countries where torture could be performed at notorious "black sites." One of Obama’s first acts as president was to ban torture and overturn the DOJ/OLC memos that under Bush that had authorized it. So Obama has eliminated the torture that drove his opposition to the Bush administration’s most egregious rendition practice. The fact that he is still using renditions as a tool to combat terrorism, according to Human Rights Watch, is really no big deal.
- State Secrets. Obama was opposed of excessive use of the state secret privilege to block lawsuits against the government on the theory that they conflicted with national security. The Bush administration invoked the privilege 39 times, after it had only been invoked 6 times during the height of the Cold War, which certainly suggests it was being abused. AG Holder announced in September 2009 a new policy to limit the use of the privilege. Again, Obama never said he would eliminate it (or permanently waive the right to invoke it), he said he would stop its excessive, abusive use.
- Miranda Rights. Stewart characterizes this as Obama "saying no to Miranda rights!" AG Holder said that the Department of Justice was considering recommendations to legislatively "modernize" Miranda rights, which is a court doctrine established in the 1960s largely in the context of police arrests of criminal suspects. Holder’s concern was that it was not designed for the exigencies of modern terrorism. This is the same AG Holder who has pushed for a criminal trial of the most notorious terrorists in civilian courts, despite significant GOP and local government opposition, instead of military commissions. He’s not calling for the end of Miranda rights. In any event, immediately after Holder's statement on Meet the Press, the administration began to walk it back and there's been no push to take such action since.
- Whistle Blowers. Stewart's evidence that Obama is "anti-whistle blower" is the horrible hit job by the New York Times, the sole point of which seemed to be "Obama is worse than Bush!" Stewart declared "Obama arrests whistle blowers who expose government waste!" Um, no. Since I wrote about this already, I’ll move on.
- Secret Wars. The sexy name comes from a recent Washington Post article about the Obama administration's use of special forces around the world largely in secret to unilaterally combat terrorism, train local forces, and engage in joint counter-terror operations with host countries. According to the article, the operations are often secret in deference to the host country that doesn't want to publicly acknowledge permitting U.S. forces in the country. As for legal controversy, the article suggests that the United Nations has expressed some concern, but not significantly in cases where the host country has more explicitly consented. It seems the harshest criticism in the article was from former Bush officials still smarting over criticism over their administration's practices. Sour grapes.
- Killing American-Born Terrorists Abroad. His example is the American-born member of Al Qaeda based in Yemen who helped plan the failed Christmas bomber's attempt to bring down a passenger plane in Detroit, who the CIA has apparently authorized to be killed by a drone. An argument could be made that if American born terrorists were subject to special protection relative to other terrorists abroad, this could be exploited by terrorists who would then actively recruit American citizens. But a big issue here (as in any capital case) is what if the CIA makes a mistake? So in the end, I come out against the Obama administration here. But the issue here is not nearly as black and white under international law as, for example, the well established prohibition of torture.
So overall, do we have a massive betrayal by Obama now that he wears the ring? Not so much.
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