Out-Heroding Herod

I am dismayed. After eight long, excruciating years of the Bush Administration, I thought I had seen everything. I almost thought I was inured to outrage. But last week I watched as a new president stood before a copy of our nation’s most sacred document and spoke of instituting “preventive detentions.” The Signers of that great document must have been spinning in their graves so fast, they could have air-cooled the entire District of Columbia.

It was the prettiest piece of sophistry I have ever heard coming from the mouth of a politician. I always wondered what it looked like to speak out of both sides of one’s mouth. Before last week, I thought it physically impossible. Yet there he stood before the Constitution, slamming the Bush Administration for its putting expediency before principle, policy before the rule of law. Then without missing a beat he proceeds to unfold to us his new brainchild: preventive detentions. Not legal now, no, no, but it’s going to be. He’s even going to work closely with Congress to make it so. Now that is a break with the previous administration. At least Bush and Cheney had some shame and did their lawbreaking behind closed doors. Obama wants to make it the rule of law.

Mr. Obama, you did not take an oath to defend a country; you swore to protect and defend a document. Some may argue that the Constitution itself allows for such detentions. Au contraire. The Fifth Amendment states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The amendment refers to the military’s having its own courts of justice (courts martial) to try its own personnel. It does not provide for military tribunals for enemy combatants. This fact was challenged during WWII, when in 1942 a group of German spies landed by U-boat on American soil in order to set up sabotage operations. The Supreme Court upheld FDR’s right to form military commissions to try such persons, but not without prior authorization by Congress. (Hurray for checks and balances. I know I’d seen them somewhere.) They did not have to be tried in the criminal courts– BUT THEY WERE TRIED!

I cannot believe that this is the same man who campaigned on a promise to dismantle Guantanamo. Sure, he’s trying to do that, while at the same time planning to gerry-rig the law in order to keep most of the detainees indefinitely, without charges and without trial. Pardon me, but this smacks just a trifle bit totalitarian. Instead of bringing the much needed wind of change, Obama seems to have settled for the same squalid stench that made the GOP a curse word. Is the man mad, or is he just lost in the military-industrial complex?

It out-herods Herod!


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