by Peter Van Buren

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the [...]]]> Drone-Killing the Fifth Amendment

by Peter Van Buren

You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

Due Process in Constitutional America

Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

Al-Awlaki’s Death

On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

Death by Pen

For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

What Do Words Mean in Post-Constitutional America?

Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

Principles

Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

The Kind of Country We Live In

We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.

– Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.

This article was first published by Tom Dispatch and was reprinted here with permission. Follow TomDispatch on Twitter and join us on Facebook and Tumblr. Check out the newest Dispatch Book, Rebecca Solnit’s Men Explain Things to Me. Copyright 2014 Peter Van Buren

by Victoria Brittain

via Tom Dispatch

A four-month hunger strike, mass force-feedings, and widespread media coverage have at last brought Guantanamo, the notorious offshore prison set up by the Bush administration early in 2002, back into American consciousness. Prominent voices are [...]]]> How to Pre-Convict and Pre-Punish an American Muslim 

by Victoria Brittain

via Tom Dispatch

A four-month hunger strike, mass force-feedings, and widespread media coverage have at last brought Guantanamo, the notorious offshore prison set up by the Bush administration early in 2002, back into American consciousness. Prominent voices are finally calling on President Obama to close it down and send home scores of prisoners who, years ago, were cleared of wrongdoing.

Still unnoticed and out of the news, however, is a comparable situation in the U.S. itself, involving a pattern of controversial terrorism trials that result in devastating prison sentences involving the harshest forms of solitary confinement.  This growing body of prisoners is made up of Muslim men, including some formerly well-known and respected American citizens.

At the heart of these cases is a statute from the time of the Clinton presidency making it a crime to provide “material support” to any foreign organization the government has designated as “terrorist.”  This material support provision was broadened in the USA PATRIOT Act, passed by Congress just after the 9/11 attacks, and has been upheld by a 2010 Supreme Court ruling in the case of Holder v. Humanitarian Law Project.  Today, almost any kind of support, including humanitarian aid, training, expert advice, “services” of all sorts, or “political advocacy” undertaken in “coordination” with any group on the State Department’s terrorist list, can lead to such a terror trial. The Court has never defined what “coordination” actually means.

In that Supreme Court ruling, Justice Stephen Breyer was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Breyer proposed a narrower interpretation of material support: individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence. At the time, the position of the dissenting judges was backed by key editorials in major newspapers.  In the three years since, however, more material support cases have resulted in long sentences with very little public notice or critical comment.

Pre-Trial Punishment

In the U.S. these days, the very word “terror,” no less the charge of material support for it, invariably shuts down rather than opens any conversation.  Nonetheless, a decade of researching a number of serious alleged terrorism cases on both side of the Atlantic, working alongside some extraordinary human rights lawyers, and listening to Muslim women in Great Britain and the U.S. whose lives were transformed by the imprisonment of a husband, father, or brother has given me a different perspective on such cases.

Perhaps most illuminating in them is the repeated use of what’s called “special administrative measures” to create a particularly isolating and punitive atmosphere for many of those charged with such crimes, those convicted of them, and even for their relatives.  While these efforts have come fully into their own in the post-9/11 era, they were drawn from a pre-9/11 paradigm.  Between the material support statute and those special administrative measures, it has become possible for the government to pre-convict and in many cases pre-punish a small set of Muslim men.

Take the case of Ahmed Abu Ali, a young Palestinian-American who is now serving life in the Administrative Maximum Facility, a supermax prison in Florence, Colorado, and is currently under special administrative measures that restrict his communications with the outside world. A university student in Saudi Arabia, he was arrested in 2003 by the Saudi government and held for 20 months without charges or access to a lawyer. The Washington Postreported that the U.S. government finally asked for his return just as his family filed a lawsuit in Washington.

At the time, it seemed like a victory for the family and the various human rights organizations that had supported them, but on arrival Ahmed was charged with material support for al-Qaeda and plotting to assassinate President George W. Bush. The evidence to convict him came from an anonymous alleged co-conspirator and from taped confessions he made, evidently after being tortured in Saudi Arabia, a common practice there. The evidence of his torture wascontested at his trial.  The case was described by a staff member of Amnesty International USA as “unusual in the annals of U.S. outsourcing of torture.”  An appeal of Ahmed’s 30-year sentence actually resulted in the imposition of an even more severe sentence: life without parole.

In addition, special administrative measures have been applied to him.  These were originally established in 1996 to stop communications from prison inmates who could “pose a substantial risk of death or serious risk of injury.” The targets then were gang leaders.  Each special administrative measure was theoretically to be designed to fit the precise dangers posed by a specific prisoner. Since 9/11, however, numerous virtually identical measures have been applied to Muslim men, often like Ahmed Abu Ali with no history of violence.

A question to Ahmed’s sister about how her brother is doing is answered only with a quick look. She is not allowed to say anything because special measures also prohibit family members from disclosing their communications with prisoners. They similarly prevent defense lawyers from speaking about their clients. It was for a breach of these special measures in relation to her client, the imprisoned blind sheikh Omar Abdel-Rahman, that lawyer Lynne Stewart was tried and sentenced to 10 years in prison in the Bush years.

Although these measures have been contested in court, few have ever been modified, much less thrown out. Those court challenges and evidence provided to the European Court of Human Rights by American lawyers have, however, provided a window into what one of them described as a regime of “draconian and inhumane treatment.”

Under such special administrative measures at the Metropolitan Correction Center in New York City, a prisoner lives with little natural light, no time in communal areas, no radio or TV, and sometimes no books or newspapers either, while mail and phone calls are permitted only with family, and even then are often suspended for minor infractions. Family visits are always no-contact ones conducted through plexiglass.

“The conditions have quite simply wreaked havoc on Mr X’s physical and mental well-being,” one lawyer wrote for the European Court of Human Rights, describing a seven-month period in which a prisoner at the Metropolitan Correction Center was allowed no family phone calls. Another highlighted his client’s lost concentration, which made it impossible to work on his case effectively. “Their world shrinks dramatically,” was the way Joshua Dratel, a lawyer who has represented several men under these measures,described the situation.

In cases where special administrative measures are in place pre-trial, such as the well-documented ordeal of American post-graduate student Syed Fahad Hashmi, lawyers have often been obliged to prepare cases without actually sitting with their clients, or being able to show them all court materials. After three pre-trial years mainly in solitary confinement under special administrative measures at the Metropolitan Correction Center, Hashmi accepted a government plea bargain of one count of material support for terrorism and was given a 15-year sentence.

His crime? He allowed an acquaintance to stay at his student apartment in London, use his cell phone, and store a duffel bag there. The bag contained ponchos and waterproof socks that were later supposedly delivered to al-Qaeda, while the phone was used by that acquaintance to make calls to co-conspirators in Britain.

Silencing Palestinian-Americans

Just as the Bush administration found the Geneva Conventions “quaint” and ignored them, so the principle of “innocent until proven guilty,” a part of Western civilization since Roman times, has all but disappeared for Muslims who face accusations of “material support” for terrorism.

Such cases have, at times, involved high-profile men and once received significant media attention. Civil rights activist and University of South Florida professor Sami Al-Arian, accused of being a leader of Palestinian Islamic Jihad (a State Department-designated terrorist organization), was, for instance, treated like a man already being punished for his crime even before his trial.  Previously, he had been a respected American-Muslim political leader with contacts in the White House and in Congress.  Now, walking to pre-trial meetings with his lawyers, his arms were shackled behind him, so that, humiliatingly, he had to carry his legal papers on his back.

Amnesty International described Al-Arian’s pre-trial detention in Coleman Federal Penitentiary as “gratuitously punitive.” It cited his 23-hour lockdown in his cell, the strip searches, the use of chains and shackles, the lack of access to any religious services, and the insistence on denying him a watch or clock in a windowless cell. He was transferred to 14 different prison facilities in 6 states. He ended up spending three and a half years in solitary confinement without being convicted of anything.  At his trial, the government called 80 witnesses, including 21 from Israel, while his counsel called no defense witnesses, only citing the U.S. Constitution. A Florida jury nonetheless acquitted him on half of the counts, and deadlocked on the other half.  (Ten out of 12 jurors wanted to acquit him on all charges.) He later struck a plea deal on one minor charge.

Today, the Palestinian-American professor is still in legal limbo, under house arrest, awaiting a judge’s ruling on whether he has to testify in a separate case. An articulate U.S. Muslim political leader, who helped bring in the Muslim vote for George W. Bush after the candidate came out publicly against the use of secret evidence in trials, when the Gore campaign did not and so contributed to his Florida victory in the 2000 presidential campaign, has been silenced for his openly expressed pro-Palestinian opinions.

Successful and influential Palestinian-American Ghassan Elashi, a founder and the chairman of what was once America’s largest Muslim charity, the Holy Land Foundation, and Shukri Abu Baker, its president, were similarly silenced along with three other foundation officials.  The two of them received prison sentences of 65 years for giving charity to orphanages and community organizations in Gaza (also supported by the European Union and the U.S. Agency for International Development). The Holy Land leaders were accused of giving “material support” to a foreign terrorist organization: Hamas, the elected government in Gaza.  There were no accusations of inciting or being involved in acts of violence. This case, like Professor Al Arian’s, would never have been possible if Justice Breyer’s views had prevailed at the Supreme Court.

Even then, it took a second trial before a jury returned a guilty verdict against the Holy Land leaders. Nancy Hollander, counsel for one of the men, summed up the situation this way: “The thought that somebody gets sixty-five years for providing charity is really shameful, and I believe this case will go down in history, as have others, as a shameful day.” In 2012, the Supreme Court refused to rehear the case, and four of the five convicted men remain confined to the especially restrictive “communications management unit” at the U.S. penitentiary in Marion, Illinois, where Muslims make up two-thirds of the inmates.

There were also 246 unindicted co-conspirators named in the Holy Land Foundation case, including major Muslim organizations.  The case and the particularly long sentences sent a shot of fear through Muslim communities in the U.S., as was surely intended.

The men’s daughters still speak out on their fathers’ case. Noor Elashi, for example, told me, “His is the poster case for ‘material support.’”  In the meantime, 15-minute weekly prison phone calls, monitored in real time from Washington, are the thinnest of threads to hold family relationships together, as are rare visits to distant prisons. Mariam Abu Ali once described to me her annual visit to her older brother Ahmed Abu Ali.  The expense was difficult to absorb: two flights, a rental car, and a motel for a three-day visit of about four hours a day, for a family already shouldering heavy debts for legal fees.

The real ordeal, though, was emotional, not financial. “They bring him in shackled at the waist and legs,” she told me. “We see them take off the handcuffs as he puts his hands out through a gap in the door. It’s emotionally draining… he’s there but so far away behind the glass. Only one of us can hear him at a time as he speaks though a phone… I’ve tried to lip read when it isn’t my turn, but it really doesn’t work. I feel very exhausted and sometimes I fall asleep during the visit. I cry every time, especially when he leaves…  It’s not like a death.  You don’t grieve and then finish, because this is not in the past.  In fact, it is not even in the back of my mind — it is always there… This is chronic after nine years and it is not going to end.”

In itself, solitary confinement has devastating effects, as Dr. Atul Gawande has vividly pointed out, and is becoming ever more common in U.S. prisons in breach of internationally recognized norms on the humane treatment of prisoners.  It tends to break the will of inmates, sometimes even robbing them of their sanity.  However, in its most extreme use, combining those special administrative measures with the isolation imposed in prison communication management units, it is mainly applied to American Muslims.

The stories of what happens to Muslim men today in U.S. prisons and of the judicial cases that land them there under the harshest of conditions bear a startling resemblance to the cages at Guantanamo Bay and the charade of a legal system that is still in operation there.

Miscarriages of Justice

In addition to the examples of prominent, formerly successful Palestinian-Americans, there are a series of haunting cases of newer Muslim arrivals in the U.S., each of them an evident miscarriage of justice.  These include the Fort Dix Five, originally from Albania, and that of Imam Yassin Aref, an Iraqi Kurd.  Their entrapment cases, typically based on “sting” operations manufactured by FBI informants, sent men respected in their communities into solitary confinement for long years on what were probably trumped-up charges. In such cases, the only “plot” is often manufactured by the government itself.

This, then, is the state of so many cases of “terrorism” in the U.S. today in which disparate Muslim men have been swept up in a system in which guilt is assumed and people’s lives are quickly turned into waking nightmares in what used to be called the “justice system.”  Some great miscarriages of justice do get overturned. Black Panther Robert King spent 31 years in prison, 29 in solitary confinement for a crime he did not commit. His release in 2001 came about by chance when his persistent letter writing attracted the attention of a young lawyer and the founder of The Body Shop, Anita Roddick, who became his champion alongside a grassroots campaign for his release.  Since then, King has himself campaigned at home and abroad for the release of his two colleagues in “the Angola Three,” who still remain in prison, and against the system that could have broken him as it has so many others.

Thanks to the special administrative measures applied in his case, Ahmed Abu Ali cannot do what Robert King did, or what the lawyer and a friend of WikiLeaks informant Private Bradley Manning did to get his prison conditionswidely known, or what Mumia Abu Jamal has done throughout his 30 years in solitary confinement via his books and his talks on prison radio. Ahmed cannot contact the world outside in search of the support he and his family need, nor can his family members.

The painful impact of all this on the families is difficult to imagine. Chilean novelist and playwright Ariel Dorfman once wrote that torture “presupposes the… abrogation of our capacity to imagine someone else’s suffering, to dehumanize him or her so much that their pain is not our pain. It demands this of the torturer… but also demands of everyone else the same distancing, the same numbness.”

Perhaps such a state helps explain why people around the world are far more aware than most Americans of what happens to Muslim men in the post-9/11 “justice system.”  The particular cruelty of the punishments they endure even before their unfair trials, will someday, like the abuses at Guantanamo, gain the attention they deserve.

Victoria Brittain, journalist and former editor at the Guardian, has authored or co-authored two plays and four books, including Enemy Combatant with Moazzam Begg. Her latest book, Shadow Lives: The Forgotten Women of the War on Terror (Palgrave/Macmillan, 2013), has just been published.  This is her second piece for TomDispatch.

Follow TomDispatch on Twitter and join us on Facebook or Tumblr. Check out the newest Dispatch book, Nick Turse’s The Changing Face of Empire: Special Ops, Drones, Proxy Fighters, Secret Bases, and Cyberwarfare.

Copyright 2013 Victoria Brittain

Earlier today the FBI issued a press release stating that two Iranian men have been criminally charged in a New York court for allegedly plotting to assassinate [...]]]> Update: I was interviewed on FAIR’s Counterspin radio show about this on October 13. I come in around the 15 minute mark.

Earlier today the FBI issued a press release stating that two Iranian men have been criminally charged in a New York court for allegedly plotting to assassinate Saudi Arabia’s ambassador to the United States, Adel al-Jubeir. Here are some examples of how the U.S. mainstream media initially headlined the story:

ABC News: Iran ‘Directed’ Washington, D.C., Terror Plot, U.S. Says

New York Times: U.S. Accuses Iranians of Plotting to Kill Saudi Envoy

Washington Post: Iran behind alleged terrorist plot, U.S. says

So from the looks of things, Iran has been planning a terrorist plot on U.S. soil, right? Wrong, at least for now that is. There are many holes in this story that need to be filled before the government of Iran can be credibly accused of committing what could be interpreted as an act of war. For a summary of related events so far, read Jim Lobe’s report, and following are some preliminary questions that need answering:

1) Who has the authority to operate on behalf of the Iranian government?

If a relative of a member of the U.S. military or CIA plans a murder on foreign soil and claims he was ordered to even though the U.S. denies it, would we consider that a terrorist plot by the U.S.?

The accused named in the FBI press release are Manssor Arbabsiar, a 56-year-old Iranian-American from Texas with dual citizenship, and Gholam Shakuri, an alleged Iran-based member of Iran’s secretive Quds Force. What does the U.S. have that proves they were acting on behalf of the Iranian government, which, by the way, quickly denied the charges?

2) Who approached who first?

If Arbabsiar approached the agent first, how did he find them? If the FBI put Arbabsiar under surveillance for suspicious activities and then lured him into direct communication (which could have been the initial point of contact), was the FBI involved in other persuasive activities as well? Considering the loony aspects of this story which even Hillary Clinton has alluded to, is it wrong to question the sanity of Arbabsiar? Is it unfathomable that the FBI could have found a crazy and/or impressionable person who was acting on his own accord but was in some way related to elements of the Iranian government?

Update: A report in the Washington Post by Greg Miller and Julie Tate sheds some light on who Arbabsiar really is. According to House intelligence Chairman Mike Rogers (R-Mich.):

It is my belief he was recruited for this particular operation

3) What are the exact details of Arbabsiar’s confession and under what conditions was it made?

4) While in FBI custody, Arbabsiar made calls to his “cousin” in Iran who is allegedly a “big general” in the Iranian army and a “senior member of the Qods Force”. How did the FBI verify his cousin’s identity?

Did the cousin verify his identity on the phone? If yes, why would he do that if they knew one another? Would the alleged cousin really have been that imprudent while speaking to someone that he was planning an assassination plot with?

5) Why is the “cousin” unnamed?

6) Why would a government that is constantly accused of conniving to build nuclear weapons so that it can allegedly wreak destruction upon its adversaries attempt to assassinate someone as insignificant as the Saudi ambassador to the U.S. in such a poorly conducted plot and with the use of such low-level assailants?

While nothing is impossible, Iran has shown its capabilities in Lebanon and Iraq and this plot is not its style. You would think that after surviving for 32 years with the most powerful countries in the world against it, the leaders of the Islamic Republic would have learned a few things about carrying out high-risk operations with diligence and maximum impact — clearly not the case here.

7) What could Iran gain from this plot?

Certainly tensions have increased between Iran and Saudi Arabia over the past year, but Iran has been battling the Saudis in other ways, by exerting influence over Iraq’s government, for example. As Jim Lobe points out, if this plot is really Iran’s doing, it will only lead to more strangling sanctions and bring the threat of war closer. Unless you are among the misguided group of people who think that Iran’s current government is suicidal, taking part in an event like this is simply not in Iran’s interest.

8) What can Iran lose from this plot?

As Lobe and Josh Rogin have pointed out, Iran hawks are having a field day with this story. Senator Mark Kirk (R-IL) immediately called for the U.S. to collapse Iran’s central bank and unsigned opinion pieces are urging further action (what comes after sanctions?) against the Iranian “threat.” This story was also broken on the same day that further OFAC sanctions were announced, with more on the way.

I am not doubting that suspicious and worrisome events took place with regard to Arbabsiar or that Iran has animosity towards Saudi Arabia and the U.S. and vice versa (recall Saudi Arabia urging the U.S. to bomb Iran), but do we really have enough evidence to claim that the government of Iran directly attempted to carry out an assassination plot on U.S. soil? That’s a serious, game-changing charge. Even if you don’t want to accept Iran’s official denial, you need to produce more facts before you can make that case. It remains to be seen whether the mainstream media will do its job and provide us with them.

The Saved and the Sacked

By David Bromwich

Is it too soon to speak of the Bush-Obama presidency?

The record shows impressive continuities between the two administrations, and nowhere more than in the policy of “force projection” in the Arab world. With one war half-ended [...]]]> Reposted by arrangement with Tom Dispatch

The Saved and the Sacked

By David Bromwich

Is it too soon to speak of the Bush-Obama presidency?

The record shows impressive continuities between the two administrations, and nowhere more than in the policy of “force projection” in the Arab world. With one war half-ended in Iraq, but another doubled in size and stretching across borders in Afghanistan; with an expanded program of drone killings and black-ops assassinations, the latter glorified in special ceremonies of thanksgiving (as they never were under Bush); with the number of prisoners at Guantanamo having decreased, but some now slated for permanent detention; with the repeated invocation of “state secrets” to protect the government from charges of war crimes; with the Patriot Act renewed and its most dubious provisions left intact — the Bush-Obama presidency has sufficient self-coherence to be considered a historical entity with a life of its own.

The significance of this development has been veiled in recent mainstream coverage of the national security state and our larger and smaller wars. Back in 2005-2006, when the Iraqi insurgency refused to die down and what had been presented as “sectarian feuding” began to look like a war of national liberation against an occupying power, the American press exhibited an uncommon critical acuteness. But Washington’s embrace of “the surge” in Iraq in 2007 took that war off the front page, and it — along with the Afghan War — has returned only occasionally in the four years since.

This disappearance suited the purposes of the long double-presidency. Keep the wars going but normalize them; make them normal by not talking about them much; by not talking about them imply that, while “victory” is not in sight, there is something else, an achievement more realistic and perhaps more grown-up, still available to the United States in the Greater Middle East. This other thing is never defined but has lately been given a name. They call it “success.”

Meanwhile, back at home…

The usual turn from unsatisfying wars abroad to happier domestic conditions, however, no longer seems tenable. In these August days, Americans are rubbing their eyes, still wondering what has befallen us with the president’s “debt deal” — a shifting of tectonic plates beneath the economy of a sort Dick Cheney might have dreamed of, but which Barack Obama and the House Republicans together brought to fruition. A redistribution of wealth and power more than three decades in the making has now been carved into the system and given the stamp of permanence.

Only a Democratic president, and only one associated in the public mind (however wrongly) with the fortunes of the poor, could have accomplished such a reversal with such sickening completeness.

One of the last good times that President Obama enjoyed before the frenzy of debt negotiations began was a chuckle he shared with Jeff Immelt, the CEO of General Electric and now head of the president’s outside panel of economic advisers.  At a June 13th meeting of the Council on Jobs and Competitiveness, a questioner said he assumed that President Obama knew about the difficulties caused by the drawn-out process of securing permits for construction jobs. Obama leaned into the microphone and offered a breezy ad-lib: “Shovel ready wasn’t as, uh, shovel-ready as we expected” — and Immelt got off a hearty laugh. An unguarded moment: the president of “hope and change” signifying his solidarity with the big managers whose worldly irony he had adopted.

A certain mystery surrounds Obama’s perpetuation of Bush’s economic policies, in the absence of the reactionary class loyalty that accompanied them, and his expansion of Bush’s war policies in the absence of the crude idea of the enemy and the spirited love of war that drove Bush. But the puzzle has grown tiresome, and the effects of the continuity matter more than its sources.

Bush we knew the meaning of, and the need for resistance was clear. Obama makes resistance harder. During a deep crisis, such a nominal leader, by his contradictory words and conduct and the force of his example (or rather the lack of force in his example), becomes a subtle disaster for all whose hopes once rested with him.

The philosopher William James took as a motto for practical morality: “By their fruits shall ye know them, not by their roots.”

Suppose we test the last two and a half years by the same sensible criterion. Translated into the language of presidential power — the power of a president whose method was to field a “team of rivals” and “lead from behind” — the motto must mean: by their appointments shall ye know them.

Let us examine Obama, then, by the standard of his cabinet members, advisers, and favored influences, and group them by the answers to two questions: Whom has he wanted to stay on longest, in order to profit from their solidity and bask in their influence? Which of them has he discarded fastest or been most eager to shed his association with? Think of them as the saved and the sacked.  Obama’s taste in associates at these extremes may tell us something about the moral and political personality in the middle.

The Saved

Advisers whom the president entrusted with power beyond expectation, and sought to keep in his administration for as long as he could prevail on them to stay:

1. Lawrence Summers: Obama’s chief economic adviser, 2009-2010. As Bill Clinton’s secretary of the treasury, 1999-2001, Summers arranged the repeal of the New Deal-era Glass-Steagall Act, which had separated the commercial banks — holders of the savings of ordinary people — from the speculative action of the brokerage houses and money firms. The aim of Glass-Steagall was to protect citizens and the economy from a financial bubble and collapse.  Demolition of that wall between savings and finance was a large cause of the 2008 meltdown. In the late 1990s, Summers had also pressed for the deregulation of complex derivatives — a dream fully realized under Bush. In the first months of the Obama era, given a free hand by the president, he commandeered the bank bailouts and advised against major programs for job creation. He won, and we are living with the results.

In 2009-2010, the critical accessory to Summers’s power was Timothy Geithner, Obama’s treasury secretary.  Most likely, Geithner was picked for his position by the combined recommendations of Summers and Bush’s treasury secretary Hank Paulson. The latter once described Geithner as “a very unusually talented young man,” and worked with him closely in 2008 when he was still president of the New York Fed.  At that time, he concurred with Paulson on the wisdom of bailing out the insurance giant AIG and not rescuing Lehman Brothers. Obama for his part initiated several phone consultations with Paulson during the 2008 campaign — often holding his plane on the tarmac to talk and listen. This chain is unbroken. Any tremors in the president’s closed world caused by Summers’s early departure from the administration have probably been offset by Geithner’s recent reassurance that he will stay at the Treasury beyond 2011.

Postscript: In 2011, Summers has become more reformist than Obama. On The Charlie Rose Show on July 13th, he criticized the president’s dilatoriness in mounting a program to create jobs. Thus he urged the partial abandonment of his own policy, which Obama continues to defend.

2. Robert Gates: A member of the permanent establishment in Washington, Gates raised to the third power the distinction of massive continuity: First as CIA director under George H.W. Bush, second as secretary of defense under George W. Bush, and third as Obama’s secretary of defense.  He remained for 28 months and departed against the wishes of the president. Gates sided with General David Petraeus and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen in 2009 to promote a major (called “moderate”) escalation of the Afghan War; yet he did so without rancor or posturing — a style Obama trusted and in the company of which he did not mind losing. In the Bush years, Gates was certainly a moderate in relation to the extravagant war aims of Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and their neoconservative circle. He worked to strengthen U.S. militarism through an ethic of bureaucratic normalization.

His approach has been endorsed and will be continued — though probably with less canniness — by his successor Leon Panetta. Without a career in security to fortify his confidence, Panetta is really a member of a different species: the adaptable choice for “running things” without regard to the nature of the thing or the competence required. Best known as the chief of staff who reduced to a semblance of order the confusion of the Clinton White House, he is associated in the public mind with no set of views or policies.

3. Rahm Emanuel: As Obama’s White House chief of staff, Emanuel performed much of the hands-on work of legislative bargaining that President Obama himself preferred not to engage in. (Vice President Joe Biden also regularly took on this role.) He thereby incurred a cheerless gratitude, but he is a man willing to be disliked. Obama seems to have held Emanuel’s ability in awe; and such was his power that nothing but the chance of becoming mayor of Chicago would have plucked him from the White House. Emanuel is credited, rightly or not, with the Democratic congressional victory of 2006, and one fact about that success, which was never hidden, has been too quickly forgotten. Rahm Emanuel took pains to weed out anti-war candidates.

Obama would have known this, and admired the man who carried it off. Whether Emanuel pursued a similar strategy in the 2010 midterm elections has never been seriously discussed. The fact that the category “anti-war Democrat” hardly exists in 2011 is, however, an achievement jointly creditable to Emanuel and the president.

4. Cass Sunstein: Widely thought to be the president’s most powerful legal adviser. Sunstein defended and may have advised Obama on his breach of his 2008 promise (as senator) to filibuster any new law awarding amnesty to the telecoms that illegally spied on Americans. This was Obama’s first major reversal in the 2008 presidential campaign: he had previously defended the integrity of the Foreign Intelligence Surveillance Act (FISA) against the secret encroachment of the National Security Agency (NSA).

At that moment, Obama changed from an accuser to a conditional apologist for the surveillance of Americans: the secret policy advocated by Dick Cheney, approved by President Bush, executed by NSA Director Michael Hayden, and supplied with a rationale by Cheney’s legal counsel David Addington. In his awkward public defense of the switch, Obama suggested that scrutiny of telecom records and their uses by the inspectors general in the relevant agencies and departments should be enough to restore the rule of law.

When it comes to national security policy, Sunstein is a particularly strong example of Bush-Obama continuity. Though sometimes identified as a liberal, from early on he defended the expansion of the national security state under Cheney’s Office of the Vice President, and he praised the firm restraint with which the Ashcroft Justice Department shouldered its responsibilities. “By historical standards,” he wrote in the fall of 2004, “the Bush administration has acted with considerable restraint and with commendable respect for political liberty. It has not attempted to restrict speech or the democratic process in any way. The much-reviled and poorly understood Patriot Act, at least as administered, has done little to restrict civil liberty as it stood before its enactment.” This seems to have become Obama’s view.

Charity toward the framers of the Patriot Act has, in the Obama administration, been accompanied by a consistent refusal to initiate or support legal action against the “torture lawyers.”  Sunstein described the Bush Justice Department memos by John Yoo and Jay Bybee, which defended the use of the water torture and other extreme methods, in words that stopped short of legal condemnation: “It’s egregiously bad. It’s very low level, it’s very weak, embarrassingly weak, just short of reckless.” Bad lawyering: a professional fault but not an actionable offense.

The Obama policy of declining to hold any high official or even CIA interrogators accountable for violations of the law by the preceding administration would likely not have survived opposition by Sunstein. A promise not to prosecute, however, has been implicit in the findings by the Obama Justice Department — a promise that was made explicit by Leon Panetta in February 2009 when he had just been named President Obama’s new director of the CIA.

As head of the president’s Office of Information and Regulatory Affairs, with an office in the White House, Sunstein adjudicates government policy on issues of worker and consumer safety; yet his title suggests a claim of authority on issues such as the data-mining of information about American citizens and the government’s deployment of a state secrets privilege. He deserves wider attention, too, for his 2008 proposal that the government “cognitively infiltrate” discussion groups on-line and in neighborhoods, paying covert agents to monitor and, if possible, discredit lines of argument which the government judges to be extreme or misleading.

5. Eric Holder: Holder once said that the trial of suspected 9/11 “mastermind” Khalid Sheikh Mohammed in a New York City courtroom would be “the defining event of my time as attorney general.”  The decision to make KSM’s a civilian trial was, however, scuttled, thanks to incompetent management at the White House: neither the first nor last failure of its kind. The policy of trying suspected terrorists in civilian courts seems to have suffered from never being wholeheartedly embraced by the administration’s inside actors. Local resistance by the New York authorities was the ostensible reason for the failure and the change of venue back to a military tribunal at Guantanamo. No member of the administration besides Holder has been observed to show much regret.

During his 30-month tenure, in keeping with Obama’s willingness to overlook the unpleasant history of CIA renditions and “extreme interrogations,” Holder has made no move to prosecute any upper-level official of any of the big banks and money firms responsible for the financial collapse of 2008.  His silence on the subject has been taken as a signal that such prosecutions will never occur. To judge by public statements, the energies of the attorney general, in an administration that arrived under the banner of bringing “sunshine” and “transparency” to Washington, have mainly been dedicated to the prosecution of government whistle-blowers through a uniquely rigorous application of the Espionage Act of 1917. More people have been accused under that law by this attorney general than in the entire preceding 93 years of the law’s existence.

Again, this is a focus that Bush-era attorneys general John Ashcroft, Alberto Gonzales, and Michael Mukasey might have relished, but on which none would have dared to act so boldly. Extraordinary delays in grand jury proceedings on Army Private Bradley Manning, suspected of providing government secrets to WikiLeaks, and Julian Assange, who ran that website, are said to have come from a protracted attempt to secure a legal hold against one or both potential defendants within the limits of a barbarous and almost dormant law.

6. Dennis Ross: Earlier in his career, Obama seems to have cherished an interest in the creation of an independent Palestinian state. In Chicago, he was a friend of the dissident Middle East scholar Rashid Khalidi; during his 2007 primary campaign, he sought and received advice from Robert Malley, former special assistant to President Clinton for Arab-Israeli affairs, and Zbigniew Brzezinski, former national security adviser to President Jimmy Carter.  Both were “realist” opponents of the expansionist policy of Israel’s right-wing coalition government, which subsidizes and affords military protection to Jewish settlements on the occupied West Bank.

Under pressure from the Israel lobby, however, Obama dissociated himself from all three chosen advisers.

Ross, as surely as Gates, is a member of Washington’s permanent establishment. Recruited for the Carter Defense Department by Paul Wolfowitz, he started out as a Soviet specialist, but his expertise migrated with a commission to undertake a Limited Contingency Study on the need for American defense of the Persian Gulf.  An American negotiator at the 2000 Camp David summit, Ross was accused of being an unfair broker, having always “started from the Israeli bottom line.”

He entered the Obama administration as a special adviser to Hillary Clinton on the Persian Gulf, but was moved into the White House on June 25, 2009, and outfitted with an elaborate title and comprehensive duties: Special Assistant to the President and Senior Director for the Central Region, including all of the Middle East and the Persian Gulf, Afghanistan, Pakistan and South Asia. Ross has cautioned Obama to be “sensitive” to domestic Israeli concerns.

In retrospect, his installation in the White House looks like the first step in a pattern of concessions to Israeli Prime Minister Benjamin Netanyahu that undid Obama’s hopes for an agreement in the region. Here, caution precluded all inventiveness. It could have been predicted that the ascendancy of Ross would render void the two-state solution Obama anticipated in his carefully prepared and broadly advertised speech to the Arab world from Cairo University in June 2009.

7. Peter Orszag: Director of the Office of Management and Budget from January 2009 to August 2010, Orszag was charged with bringing in the big health insurers to lay out what it would take for them to support the president’s health-care law.  In this way, Orszag — along with the companies — exerted a decisive influence on the final shape of the Patient Protection and Affordable Care Act of 2010. In January 2011, he left the administration to become vice chairman of global banking at Citigroup.  A few days out of the White House, he published an op-ed in the New York Times advising the president to extend the Bush-era tax cuts for the top 2% of Americans — adding that Obama should indicate that the cuts would continue in force only through 2012. Obama took the advice.

8. Thomas Donilon: National Security Adviser and (after the departure of Gates) Obama’s closest consultant on foreign policy. Donilon supported the 34,000 troop-escalation order that followed the president’s inconclusive 2009 Afghanistan War review.  He encouraged and warmly applauded Obama’s non-binding “final orders” on Afghanistan, which all the participants in the 2009 review were asked formally to approve.  (The final orders speak of “a prioritized comprehensive approach” by which the U.S. will “work with [Afghan President Hamid] Karzai when we can” to set “the conditions for an accelerated transition,” to bring about “effective sub-national governance,” and to “transfer” the responsibility for fighting the war while continuing to “degrade” enemy forces.)

Donilon comes from the worlds of business, the law, and government in about equal measure: a versatile career spanning many orthodoxies. His open and unreserved admiration for President Obama seems to have counted more heavily in his appointment than the low opinion of his qualifications apparently held by several associates.  As Assistant Secretary of State for Public Affairs during the Clinton administration, he helped arrange the eastward expansion of NATO after the Cold War: perhaps the most pointless and destructive bipartisan project of the epoch. He was Executive Vice President for Law and Policy at Fannie Mae, 1999-2005.

The Sacked

Advisers and nominees with views that were in line with Obama’s 2008 election campaign or his professed goals in 2009, but who have since been fired, asked to resign or step down, or seen their nominations dropped:

1. General James Jones: Former Marine Corps Commandant and a skeptic of the Afghanistan escalation, Jones became the president’s first National Security Adviser.  He was, however, often denied meetings with Obama, who seems to have looked on Gates as a superior technocrat, Petraeus as a more prestigious officer, and Donilon as a more fervent believer in the split-the-difference war and diplomatic policies Obama elected to pursue.  Jones resigned in October 2010, under pressure.

A curious point:  Obama had spoken to Jones only twice before appointing him to so high a post and seems hardly to have come to know him by the time he resigned.

2. Karl Eikenberry: Commander of Combined Forces in Afghanistan before he was made ambassador, Eikenberry, a retired Lieutenant General, had seniority over both Petraeus and then war commander General Stanley McChrystal when it came to experience in that country and theater of war. He was the author of cables to the State Department in late 2009, which carried a stinging rebuke to the conduct of the war and unconcealed hostility toward any new policy of escalation.  The Eikenberry cables were drafted in order to influence the White House review that fall; they advised that the Afghan war was in the process of being lost, that it could never be won, and that nothing good would come from an increased commitment of U.S. troops.

Petraeus, then Centcom commander, and McChrystal were both disturbed by the cables — startled when they arrived unbidden and intimidated by their authority. Obama, astonishingly, chose to ignore them. This may be the single most baffling occasion of the many when fate dealt a winning card to the president and yet he folded. Among other such occasions: the 2008-2009 bank bailouts and the opening for financial regulation; the BP oil spill in the Gulf of Mexico and the opportunity for a revised environmental policy; the Fukushima nuclear plant meltdowns and a revised policy toward nuclear energy; the Goldstone Report and the chance for an end to the Gaza blockade.  But of all these as well as other cases that might be mentioned, the Eikenberry cables offer the clearest instance of persisting in a discredited policy against the weight of impressive evidence.

Ambassador Eikenberry retired in 2011, and Obama replaced him with Ryan Crocker — the Foreign Service officer brought into Iraq by Bush to help General Petraeus manage the details and publicity around the Iraq surge of 2007-2008.

3. Paul Volcker: Head of the Federal Reserve under Presidents Carter and Reagan, Volker had a record (not necessarily common among upper-echelon workers in finance) entirely free of the reproach of venality. A steady adviser to the 2008 Obama campaign, he lent gravity to the young candidate’s professions of competence in financial matters.  He also counseled Obama against the one-sidedness of a recovery policy founded on repayment guarantees to financial outfits such as Citigroup and Bank of America: the policy, that is, favored by Summers and Geithner in preference to massive job creation and a major investment in infrastructure. “If you want to be a bank,” he said, “follow the bank rules. If Goldman Sachs and the others want to do proprietary trading, then they shouldn’t be banks.”  His advice — to tighten regulation in order to curb speculative trading — was adopted late and in diluted form. In January 2010, Jeff Immelt, CEO of General Electric, which paid no federal taxes that year, replaced him.

4. Dennis Blair: As Director of National Intelligence, Blair sought to limit the expansion of covert operations by the CIA.  In this quest he was defeated by CIA Director Leon Panetta — a seasoned infighter, though without any experience in intelligence, who successfully enlarged the Agency’s prerogatives and limited oversight of its activities during his tenure. Blair refused to resign when Obama asked him to, and demanded to be fired. He finally stepped down on May 21, 2010.

Doubtless Blair hurt his prospects irreparably by making clear to the president his skepticism regarding the usefulness of drone warfare: a form of killing Obama favors as the most politic and antiseptic available to the U.S.  Since being sacked, Blair has come out publicly against the broad use of drones in Pakistan and elsewhere.

On his way out, he was retrospectively made a scapegoat for the November 2009 Fort Hood, Texas, killing spree by Army psychiatrist Major Nidal Hasan; for the “underwear” bomber’s attempt to blow up a plane on its way to Detroit on Christmas day 2009; and for the failed Times Square car bombing of May 2010 — all attacks (it was implied) that Blair should have found the missing key to avert, even though the Army, the FBI, and the CIA were unable to do so.

5. James Cartwright: As vice-chairman of the Joint Chiefs of Staff, General Cartwright passed on to Obama, and interpreted for him, a good deal of information that proved useful in the Afghanistan War review. Their friendship outlasted the process and he came to be known as Obama’s “favorite general,” but Cartwright stirred the resentment of both Petraeus and Mullen for establishing a separate channel of influence with the president. Like Eikenberry, he had been a skeptic on the question of further escalation in Afghanistan.  His name was floated by the White House as the front-runner to become chairman of the Joint Chiefs after the retirement of Mullen.  Informed of the military opposition to the appointment, Obama reversed field and chose Army Chief of Staff General Martin Dempsey, a figure more agreeable to Petraeus and Mullen.

6. Dawn Johnsen: Obama’s first choice to head the Office of Legal Counsel — a choice generally praised and closely watched by constitutional lawyers and civil libertarians.  Her name was withdrawn after a 14-month wait, and she was denied a confirmation process. The cause: Republican objections to her writings and her public statements against the practice of torture and legal justifications for torture.

This reversal falls in with a larger pattern: the putting forward of candidates for government positions whose views are straightforward, publicly available, and consistent with the pre-2009 principles of Barack Obama — followed by Obama’s withdrawal of support for the same candidates. A more recent instance was the naming (after considerable delay) of Elizabeth Warren as a special advisor to organize the Consumer Financial Protection Bureau, followed by the decision in July not to nominate her as the first director of the bureau.

Avoidance of a drag-out fight in confirmation hearings seems to be the recurrent motive here. Of course, the advantage of such a fight, given an articulate and willing nominee, is the education of public opinion. But in every possible instance, President Obama has been averse to any public engagement in the clash of ideas.  “Bottom line is that it was going to be close,” a Senate Democratic source told the ABC reporter Jake Tapper when Johnsen’s name was withdrawn. “If they wanted to, the White House could have pushed for a vote. But they didn’t want to ’cause they didn’t have the stomach for the debate.”

Where the nomination of an “extreme” candidate has hardened a wrong impression of Obama as an extremist, might not a public hearing help to eradicate the very preconception that every tactical withdrawal tends to confirm? This question is not asked.

7. Greg Craig: For two years special counsel in the Clinton White House, he led the team defending the president in the impeachment proceedings in Congress. Craig’s declaration of support for Obama in March 2007 was vital to the insurgent candidate, because of his well-known loyalty to the Clintons.  Obama made him White House Counsel, and his initial task was to draw up plans for the closing of Guantanamo: a promise made by the president on his first day in the Oval Office. But once the paper was signed, Obama showed little interest in the developing plans. Others were more passionate. Dick Cheney worked on a susceptible populace to resurrect old fears.  The forces against closure rallied and spread panic, while the president said nothing.  Craig was defeated inside the White House by the “realist” Rahm Emanuel, and sacked.

8. Carol Browner: A leading environmentalist in the Clinton administration, Browner was given a second shot by Obama as director of the White House Office of Energy and Climate Change Policy.  She found her efforts thwarted within the administration as well as in Congress: in mid-2010 Obama decided that — as a way to deal with global warming — cap-and-trade legislation was a loser for the midterm elections. Pressure on Obama from the U.S. Chamber of Commerce to heed business interests served as a strong incitement in forcing Browner’s resignation after the democratic “shellacking” in midterm elections: a result that his abandonment of cap-and-trade had failed to prevent. The White House had no backup plan for addressing the disaster of global warming.  After Browner’s resignation in March 2011, her position was abolished. Since then, Obama has seldom spoken of global warming or climate change.

Moral and Political Limbo

The Obama presidency has been characterized by a refined sense of impossibility. A kind of suffocation sets in when a man of power floats carefully clear of all unorthodox stimuli and resorts to official comforters of the sort exemplified by Panetta. As the above partial list of the saved and the sacked shows, the president lives now in a world in which he is certain never to be told he is wrong when he happens to be on the wrong track.  It is a world where the unconventionality of an opinion, or the existence of a possible majority opposed to it somewhere, counts as prima facie evidence against its soundness.

So alternative ideas vanish — along with the people who represent them. What, then, does President Obama imagine he is doing as he backs into one weak appointment after another, and purges all signs of thought and independence around him? We have a few dim clues.

A popular book on Abraham Lincoln, Team of Rivals, seems to have prompted Obama to suppose that Lincoln himself “led from behind” and was committed to bipartisanship not only as a tactic but as an always necessary means to the highest good of democracy.  A more wishful conceit was never conceived; but Obama has talked of the book easily and often to support a “pragmatic” instinct for constant compromise that he believes himself to share with the American people and with Lincoln.

A larger hint may come from Obama’s recently released National Strategy for Counterterrorism, where a sentence in the president’s own voice asserts: “We face the world as it is, but we will also pursue a strategy for the world we seek.” If the words “I face the world as it is” have a familiar sound, the reason is that they received a trial run in Obama’s 2009 Nobel Prize speech. Those words were the bridge across which an ambivalent peacemaker walked to confront the heritage of Mahatma Gandhi and Martin Luther King with the realities of power as experienced by the leader of the only superpower in the world.

Indeed, Obama’s understanding of international morality seems to be largely expressed by the proposition that “there’s serious  evil in the world” — a truth he confided in 2007 to the New York Times columnist David Brooks, and attributed to the theologian Reinhold Niebuhr — combined with the assertion that he is ready to “face the world as it is.” The world we seek is, of course, the better world of high morality. But morality, properly understood, is nothing but a framework of ideals.  Once you have discharged your duty, by saying the right words for the right policies, you have to accommodate the world.

This has become the ethic of the Bush-Obama administration in a new phase.  It explains, as nothing else does, Obama’s enormous appetite for compromise, the growing conventionality of his choices of policy and person, and the legitimacy he has conferred on many radical innovations of the early Bush years by assenting to their logic and often widening their scope. They are, after all, the world as it is.

Obama’s pragmatism comes down to a series of maxims that can be relied on to ratify the existing order — any order, however recent its advent and however repulsive its effects. You must stay in power in order to go on “seeking.” Therefore, in “the world as it is,” you must requite evil with lesser evil. You do so to prevent your replacement by fanatics: people, for example, like those who invented the means you began by deploring but ended by adopting. Their difference from you is that they lack the vision of the seeker. Finally, in the world as it is, to retain your hold on power you must keep in place the sort of people who are normally found in places of power.

David Bromwich writes on civil liberties and America’s wars for the Huffington Post. A TomDispatch regular, as well as contributor to the New York Review of Books, his latest essay, “How Lincoln Explained Democracy,” appeared recently in the Yale Review.