In their critiques of Obama on this issue, commentators like Greenwald are accepting a GOP talking point that is flatly untrue - that President Obama's approach to these issues is a continuation of the Bush Administration approach. For example, Greenwald writes:
[O]n Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama's "counter-terrorism" policies (National Review's Rich Lowry: "it's kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it's wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism").
Just because Rich Lowry says it does not make it true. The Bush Administration policy on counterterrorism was beaten back by the Supreme Court over multiple cases from 2004 through 2008. It is absurd to argue that a policy that will be formulated by all 3 branches of governnment and that will expressly call for judicial review of Executive detention decisions in any way resembles the Bush policies. It does not.
But that is a real sideshow. We need not worry about what Bush did - we can judge what Obama proposes directly. Greenwald writes, in reference to my arguments on the issue, as follows:
As acknowledged by two of the leading proponents of preventive detention -- Bush OLC lawyer Jack Goldsmith and Obama's Deputy Solicitor General Neal Katyal -- the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as "prisoners of war" (since some of them, by Obama's own description, will get trials in real courts and others in military commissions), but rather, to give "the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates" . . .
(Emphasis supplied.) That may be how Goldsmith and Katyal see it and a system as contemplated by Obama now may create such a perverse incentive, but that does not negate that its purpose should be to properly and openly deal with the issue of the proper definition of "enemy combatant."
As for undercutting the incentive that may be created to avoid justice for detainees, I think provision can be made that does that. Specifically, if the executive Branch is required to justify to a competent tribunal such continued detentions every 6 months, then it seems to me unlikely that the Executive will WANT to hold detainees in this category. Indeed, it is not clear to me the preference, at least of the Obama Administration, is not avoidance as much as possible of placing any terror detainees in this category.
But on to the hearings and the discussion. To argue that the very plan of a hearing on the matter by Sen. Russ Feingold on the issue, knowing that the President accepts that Congress has a lead role on the issue, is not a change from the Bush years seems folly to me.
Speaking for me only
