Obama's Kangaroo Court

Contrary to his campaign pledge not to try Guantanamo Bay suspects by military commissions, Obama has rejected calls to bring terror suspects to trial in American courts and under the Uniform Code of Military Justice. Rather, Obama, having decided to retain some of the powers George W. Bush granted himself over the lives of terror suspects, says there will be tribunals. As conservative columnist William Safire wrote in 2001:

Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts. . . .

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial." . . .

We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.

If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his and Americans would have no need of kangaroo courts to betray our principles of justice.

As Glenn Greenwald blogged today:

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins.

At least since 9/11, beneath the theatrics of America politics, the country has become a battleground between two competing sets of values. On one hand: the values of loyalty and obedience (to king, party, or state). On the other, the rule of law. Traditionally, this is not a right-left issue. But in times of crisis, Americans have shown themselves easily (mis)led by those who embrace the former.

Obama may think he's being clever, forging some kind of "middle path" between the extremist approach of George W. Bush and the arguments of civil libertarians such as Bill Safire. But the search for a middle-path between tyranny and liberty is not the kind of project a successful political leader embraces. Why? Exemplifying values becomes an impossible task.

Surely Obama knows it. No doubt Obama realizes that waffling won't pay-off in the long run. Obama knows that during a crisis a leader should be perceived to have anchored himself to some core values. Moreover, Obama must be conscious that he is sacrificing something many supporters once gave him: Trust. These points cannot have escaped Obama.

Given the leadership vacuum on the right, the fact Obama has already gone a long way toward alienating supporters in his own party, and the observation that the majority of Americans can so easily be scared into following a leader perceived as "tough" during a time of crisis, it's not a stretch to conclude that the president is probably in the midst of a make-over; Obama is well on his way to having transformed himself into a creature of the new right. The makeover is not complete, but who cannot see it happening?

Many will accept this news cheerfully. After all, outside Pakistan or Afghanistan the Second American Emperor will likely be remembered for his benevolence. It's what what comes after Obama's imperium that should be giving them nightmares.