If the Policy Is Right, Does the Rhetoric Matter?

President Obama’s speech on the Guantanamo detainees and other aspects of the Global War on Terror Overseas Contingency Operations Against Man-Caused Disasters called to mind Lord Byron:

And still she strove, and much repented,
And saying, “I will ne’er consent”, consented.

The President strove to repudiate the policies of his predecessor, repented that our country had so lost its moral compass as to institute them, shouted (rather than just whispered), “I WILL NE’ER CONSENT!”, and then – consented to the strategy and tactics of George W. Bush. As Charles Krauthammer summarizes:

Within 125 days, Obama has adopted with only minor modifications huge swaths of the entire, allegedly lawless Bush program.

The latest flip-flop is the restoration of military tribunals. During the 2008 campaign, Obama denounced them repeatedly, calling them an “enormous failure.” Obama suspended them upon his swearing-in. Now they’re back. . . .

Cosmetic changes such as Obama’s declaration that “we will give detainees greater latitude in selecting their own counsel.” Laughable. High-toned liberal law firms are climbing over each other for the frisson of representing these miscreants in court.

What about disallowing evidence received under coercive interrogation? Hardly new. . . . Under the existing rules, military judges have that authority, and they exercised it under the Bush administration to dismiss charges against al-Qaeda operative Mohammed al-Qahtani on precisely those grounds.

Along the same lines, President Obama will exercise the same authority as President Bush to decide which enemy combatants (suitable euphemism under construction) are too dangerous to let go; they will be kept in custody indefinitely, if not at Gitmo, then somewhere else equally isolated and secure.

All in all, the substantive differences between the Presidents on these issues are thinner than the proverbial dime. And not just on these:

Observers of all political stripes are stunned by how much of the Bush national security agenda is being adopted by this new Democratic government. Victor Davis Hanson (National Review) offers a partial list: “The Patriot Act, wiretaps, e-mail intercepts, military tribunals, Predator drone attacks, Iraq (i.e., slowing the withdrawal), Afghanistan (i.e., the surge) – and now Guantanamo.”

Jack Goldsmith (The New Republic) adds: rendition – turning over terrorists seized abroad to foreign countries; state secrets – claiming them in court to quash legal proceedings on rendition and other erstwhile barbarisms; and the denial of habeas corpus – to detainees in Afghanistan’s Bagram prison, indistinguishable logically and morally from Guantanamo.

So the question arises, the President having taken over so much of George W. Bush’s program, shouldn’t those of us who agreed with that program be embracing him, just as Don Juan embraced the “ne’er consenting” lady? If the policies are right, does it matter that the rhetoric is ahistorical and absurd?

To a certain extent, it doesn’t. I’m not going to make common cause with the ACLU types, who are as vehemently opposed to military tribunals and indefinite detention under this Administration as under the last. The Obama habit of leveling classless insults at those who came before him grates, but it isn’t a reason to oppose him when he’s right.

Nonetheless, the way in which the President has chosen to address counterterrorism stores up grave problems for the future. He has endorsed hard-nosed measures with one breath while with the other he excoriates them as unconstitutional and immoral. The Bush Administration argued that the President has the right, in time of war, to capture enemy fighters, hold them without charges or trial, and, if they have committed crimes for which trial is appropriate, try them outside the civilian court system. Those are rights that every wartime President has exercised, most of them more forcefully and arbitrarily than President Bush.

The Obama Administration repudiates such reasoning. Indeed, it denies that a war is in progress. What, then, is its justification for imprisoning anyone who has not at least been duly charged with violation of a criminal statute, and for denying those who have been charged the right to a speedy trial before a civilian court? Is it nothing more than Salus populi esto suprema lex? If so, President Obama is assuming powers that no previous President – and most especially not the last one – has ever asserted: a general authority to protect the public safety by any means that seem to him necessary.

If the President possesses extraordinary powers as commander-in-chief in wartime (as I concede he does), it is vital that their basis, and the context in which they can be exercised, be limited. Otherwise, a President really is indistinguishable from a dictator. When Calvin Coolidge was in office, lawlessness was rampant. Should he have rounded up New York and Chicago mobsters, thrown them into Alcatraz for indefinite terms, tried Al Capone before a military commission, and otherwise quelled the mafiosi “by any means necessary”? Barack Obama, on his own rationale, can’t explain why not.

In essence, he has proclaimed that he will lawfully carry out acts that he believes to be inherently unlawful. I am in favor of the acts but can scarcely defend them on any grounds except the ones that the actor has rejected. If he himself has some clever rationale that doesn’t involve illimitable increases in Presidential power, he hasn’t told us what it might be.

The last temptation is the greatest treason:
To do the right deed for the wrong reason.

That familiar quotation doesn’t apply to every case, but to this one it does. By doing the right thing – following in the footsteps of the Bush Administration – without setting forth good reasons, the President will stultify his ability to keep on doing it. At some point, judges or subordinate Executive Branch officials or his own conscience will rebel. He will then face three stark alternatives: to admit that the loathed and despised Bush-Cheney war criminals were righteous defenders of our liberties, to set several hundred terrorists free and hamstring our defense against renewed attacks, or to assume unashamedly the office of dictator. I cannot imagine Barack Obama choosing any of the three. Yet he will have to take one. Voting “present” will not be an option.