Thursday, May 21, 2009

Mr. Obama on Guantanamo: Of Power and Politics in Time of Crisis

One of my favorite scenes from opera is the delightful first act of Jacques Offenbach's Contes d'Hoffman (Tales of Hoffman). Hoffman, the artist, tries without success to embrace the love as imperfectly incarnated in three women. The first act focuses on a youthful and virtuoso love, of a certain sort.
Hoffmann's first love is Olympia, an automaton created by the scientist Spalanzani. Coppélius, Olympia's co-maker and this act's evil incarnation, sells Hoffmann magic glasses which make Olympia appear as a real woman. Here Olympia sings one of the opera's most famous arias Les Oiseaux Dans La Charmille where she periodically keeps winding down just before hitting the final high note. Hoffmann is tricked into believing his affections are returned, to the bemusement of Nicklausse, who subtly tries to warn his friend. While dancing with Olympia, Hoffmann falls on the ground and his glasses break. At the same time, Coppélius appears and tears Olympia apart, in retaliation for having been tricked out of his just dues by Spalanzani. In the middle of the crowd laughing at him, Hoffmann realizes that he was in love with an automaton.
Contes d'Hoffman, Act One synopsis. It is that quality of making exquisite music, and of a nearly pathological lust to produce, exquisitely, what is expected, and to hear what is desired, that is so much a part of the American political scene today. I was reminded of the reflection of Olympia and Hoffman in American political life while watching the first act of the Tales of Guantánamo--that epic that will likely end in one way--the disappearance of Guantánamo as a detention space within Cuba and its replacement with others scattered about with far less fanfare or transparency. Obama Vow on Guantánamo Inmates, BBC News Online May 21, 2009 ("The US will find a way to cope securely with dangerous detainees at Guantanamo Bay, President Barack Obama has said. He described Guantanamo as a "misguided experiment", but conceded some of those held still posed a threat to the US. " Id.).

The event was a speech given by President Obama as a response to Congressional reluctance to proceed with the closing of the Guantánamo prison without more details. "Congress has rejected Mr Obama's move to fund the closure of Guantanamo, amid concern over moving inmates to the US. " Id. Something dramatic was required, and so what better way to respond than to wind up Olympia and have her sing within a rose colored space. "Speaking at the US National Archives, where the US Constitution and the Bill of Rights are kept, the president regularly spoke of the need to respect the rule of law, at one point calling the US "a nation of laws"." Id. The speech, Remarks of President Barack Obama, Protecting Our Security and Our Values, National Archives Museum, Washington, D.C., May 21, 2009, 17 pages long, is worth reading in its entirety, both for its content and context.

The speech starts with a bit of stage setting legitimization--the first citizen surrounded by his people who together represents the executive power of the state:
Thank you all for being here. Let me just acknowledge the presence of some of my outstanding Cabinet members and advisers. We've got our secretary of state, Hillary Clinton. We have our CIA director, Leon Panetta. We have our secretary of defense, William (sic) Gates. Secretary Napolitano of the Department of Homeland Security, Attorney General Eric Holder; my national security adviser, Jim Jones; and I want to especially thank our acting archivist of the United States, Adrian (ph) Thomas. (Id.).
And the witnesses from the American equivalent of the Roman senate--"I also want to acknowledge several members of the House who have great interest in intelligence matters. I want to thank Congressman Reyes, Congressman Hoekstra, Congressman King, as well as Congressman Thompson for being here today." Id. And indeed, there is much stage setting in both the scripting of the presentation of the speech and the vivid imagery invoked in the speech.

Thus surrounded by the incarnation of the executive power of the state, the aria begins on a note of crisis: "These are extraordinary times for our country. We're confronting a historic economic crisis. We're fighting two wars. We face a range of challenges that will define the way that Americans will live in the 21st century." Id. Crisis, of course, has always served as the royal road to usurpation of extraordinary power.

The introduction reminds the hearer of the successes of this team. And not just success--but heroic success. There is something of the mythical in the recitation:
Just this week, we've taken steps to protect American consumers and homeowners and to reform our system of government contracting so that we better protect our people while spending our money more wisely. It's a good bill. The engines of our economy are slowing beginning to turn, and we're working towards historic reform on health care and on energy. I want to say to the members of Congress I welcome all the extraordinary work that has been done over these last four months on these and other issues."
This is foundational material, meant to remind the audience that this is a winning team. Success ought to breed trust. And trust is what is about to be required. But most importantly, this is art in words. A picture has been painted that harks back to culturally significant depictions of heroes--a band of brothers, the Augustan imperial court, a late Tudor state council, and, of course, Shakespeare's St. Crispin's Day Speech of Henry V.

From this foundation, legitimacy and authority having been invoked and established, the speech moves to deepen both in so doing raise the object of the day--"my single most important responsibility as president is to keep the American people safe. It's the first thing that I think about when I wake up in the morning. It's the last thing that I think about when I go to sleep at night." Remarks of President Barack Obama, Protecting Our Security and Our Values, supra, at 2. This is both bathos and effective--the amalgamation of images of the family man, the symbolic pater familias and politically frightening "little father" (Amalia Coudert, Palace Personalities The Human Side of the Tsar, Century Magazine, 1906), using the conventional language of American politics.

Safety requires confronting the continuation of the religious war with those sects within Islam (euphemistically misidentified as a political organization--al-Qaida--to distinguish the adherents of these sects from the majority sects in Islam and to Westernize the conceptualization of the conflict) against which the United States has fought since overtly 2001. It is against this power that Mr. Obama focuses, reaffirming the Bush Administration objectives: "We know that Al Qaida is actively planning to attack us again. We know that this threat will be with us for a long time and that we must use all elements of our power to defeat it. " Remarks of President Barack Obama, Protecting Our Security and Our Values, supra. Comfort in continuity and a warning that conflict will be extended (and thus extended, setting up the need for the devolution of extended power to the pater familias who knows best).

And so the aria proceeds to a listing of the great steps already taken in the heroic efforts to defeat the enemies of America.
For the first time since 2002, we're providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We're investing in the 21st century military intelligence capabilities that will allow us to stay one step ahead of a nimble enemy.
We have reenergized a global nonproliferation regime to deny the world's most dangerous people access to the world's deadliest weapons. And we've launched an effort to secure all loose nuclear materials within four years.
We're better protecting our border and increasing our preparedness for any future attack or natural disaster. We're building new partnerships around the world to disrupt, dismantle, and defeat Al Qaida and it's affiliates. And we have renewed American diplomacy so that again, have the strength and standing to truly lead the world.
Id., at 2. Action, leadership, implementation, all in the service of the cause. Another picture worthy of Maoist Socialist Realist poster art of the 1960s. Legitimation piled on legitimacy, grounded in crisis and the assertion of authority to serve as a base for the trust necessary to accede to the steps and conditions to which Mr. Obama is slowly ambling through these visual collages.

The stage is set. And now the pounce: action is not enough. Values matter. And it is to those values symbolically expressed in the building in which the aria is sung that the next great section of the speech is devoted. But again--the focus is one legitimacy--always images of legitimacy: "My own American journey was paved by generations of citizens who gave meaning to those simple words: To form a more perfect union. I've studied the Constitution as a student. I've taught it as a teacher. I've been bound by it as a lawyer and a legislator." Id., at 3. And this provides an opening on a page devoted to the importance of values in the ethos of the Republic: values are embedded in the Presidential oath of office; it "strengthens the country and keeps us safe;" it is the reason for American greatness; it sustains alliances; it provides the basis for distinguishing between friend and foe." Id., at 3. Our values contributed to the defeat of communism. "It's the reason why we've been able to overpower the iron fist of fascism and outlast the Iron Curtain of communism and enlist free nations and free peoples everywhere in the common cause and common effort of liberty." Id. And Americans do not engage in torture.
From Europe to the Pacific, we've been the nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and our institutions are more resilient than a hateful ideology.
Id., at 3. But it appears that the naughty holders of power that preceded Mr. Obama and his clientae forgot these values in their zeal to defeat an enemy through assertions of physical but not values based power. In a land where ideology matters, an ideology and values system inimical to that now advanced by Mr. Obama, produced lapses in values. There is a lovely, and pointed extended treatment of the second Bush Administration as an "Epoch of Fear" from which excesses flowed. Id., at 3-4.
All too often, our government trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and power principles, too often, we set those principles aside as luxuries that we could no longer afford. And during this season of fear, too many of us, Democrats and Republicans, politicians, journalists, and citizens fell silent. In other words, we went off course. Id., at 4.
This is powerful rhetoric. It is rhetoric again grounded in a quest for personal legitimacy. For Mr. Obama is not speaking personally, but as the incarnation of the state. "This is not my assessment alone. It was an assessment that was shared by the American people who nominated
candidates for president from both major parties to, despite our many differences, called for a new approach, one that rejected torture, and one that recognized the imperative the closing the prison at Guantanamo Bay. " Id. at 4. Thus, the issue of the closure of Guantánamo is not merely an administrative or policy decision, but rather it is one bound up in the election of Mr. Obama, in the vindication of values ignored by a prior and more immoral administration, and the symbolic expression of the values to be advanced by the United States in its values war with Al Qaida.
Now, let me be clear. We are, indeed, at war with Al Qaida and it's affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability. Id., at 4.
At last we arrive at the point. Legitimacy matters, the approach of the Bush II Administration was illegitimate, and Mr. Obama is the incarnation of legitimacy values which will be implemented going forward.

The next section of the speech gets to specifics. There are few surprises here. First, Mr. Obama reaffirms his belief, now backed by the power of his office, that water boarding is ineffective and undermines the rule of law. Id., at 4. It is also counterproductive in the political and cultural war against the enemies of the United States. Id., at 5.

Second, Mr. Obama justified his decision to close the prison at Guantánamo. Id., at 5-6. Again, the justifications are grounded in efficiency, tactics, and the conduct of non military warfare against Al-Qaida in a world in which the masses determine winners and losers through political action. "By any measure, the cost of keeping it open far exceed the complications involved in closing it. That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year." Id., at 6.

Third, Mr. Obama expressed a commitment to clean up the Bush Administration's mess relating to the legal proceedings against the remaining 240 detained persons at the prison. "In dealing with the situation, we don't have the luxury of starting from scratch. We're cleaning up something that is quite simply a mess, a misguided experiment that has left in its wake a flood of legal challenges that my administration is forced to deal with on a constantly, almost daily, basis and that consumes the time of government officials whose time should be spent on better protecting our country. " Id., at 6. The point here is to emphasize that the problem of Guantánamo exists because of the decisions leading to its maintenance rather than to Mr. Obama's decision to close it. "In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility. The problem exists because of the decision to open Guantanamo in the first place. " Id., at 6. Again, the themes of legitimacy and illegitimacy, of values and immorality, of firm mature decision making and epochs of fear, are played out nicely in this recontextualization of the problem of Guantánamo.

From this base, or father may speak with candor, now wrapped in the power of legitimacy and grounded in authority derived from crisis:
Now, let me be blunt. There are no neat or easy answers here. I wish there were. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo.
As president, I refuse to allow this problem to fester. I refuse to pass it on to somebody else. It is my responsibility to solve the problem. Our security interests will not permit us to delay. Our courts won't allow it and neither should our conscience.
Id., at 7. But, Little Father reminds his children, that they--in their incarnation in Congress--are misbehaving. The political bodies that represent the political sovereignty of the people have begun to act politically with respect to issues that ought to be grounded solely on those great American values that the executive--not the legislature--represents.
Now, over the last several weeks, we've seen a return of politicization of these issues that have characterized the last several years. I'm an elected official. I understand these problems arouse passions and concerns. They should. We're confronting some of the most complicated questions that a democracy can face.
But I have no interest in spending all of our time relitigating the policies of the last eight years. I'll leave that to others. I want to solve these problems. And I want to solve them together as Americans. And we will be ill served by some of the fear-mongering that emerges whenever we discuss this issue.
Id., at 7. The politicians in Congress, it appears, mean to scare the people "rather than educate them; words that have more to do with politics than protecting the country." Id. So it falls to the Great American Father to guide his children. On the Great Father image and its utility, see, Francis Paul Prucha, The Great Father: The United States Government and the American Indians (Lincoln, NE: University of Nebraska Press, 1984).

And here at last we come to the purpose of the long slow canter through thickets of legitimacy and values, of blame and hierarchy. All of the elements of subordinating construction are here. Even the tropes used to turn politics into a bureaucratization of hierarchy within institutions that, shorn of their political character, become oppressive. Thus, the reference was not lightly made to the imagery of the Great Father embedded in the critical theme paragraph of this aria:
Listening to the recent debate, I've heard words that, frankly are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold most dear. Remarks of President Barack Obama, Protecting Our Security and Our Values, supra, at 7.
Here, all the carefully crafted imagery of Little Father, pater familias, and the like are brought to bear on the crucial issue to be addressed--the justification for and the plan for winding down, the Guantánamo prison facilities.

And what is that plan? First, anyone who would endanger the national security will not be released. Id., at 7. How that is to be determined remains vague; and that is ironic in light of all of that rule of law prettiness. Beyond that implementation is grouped into two broad areas. "First, issues relating to Guantanamo and our detention policy, but second, I also want to discuss issues relating to security and transparency." Id.

And so the administrative details are laid out: each detainee will receive individual attention. Those who have violated American law will be tried in American courts and serve in American prisons, like other American criminals. Id., at 8. "Our courts and our juries, our citizens, are tough enough to convict terrorists. The record make that clear." Id. Those who have violated "the laws of war" (id., at 9) will be tried by military commissions. Id., at 9. To justify this continuation of the policies of the otherwise discredited Bush Administration, Mr. Obama invokes the founders of the Republic and distances himself from his predecessor. With rose colored glasses firmly placed on his listener, our Olympia has been cranked up to explain:
Now, some have suggested that this represents a reversal on my part.
They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework with the kind of meaningful due process, rights, for the accuses that could stand up on appeal.
I said at that time, however, that I supported the use of military commissions to try detainees provided there were several reforms. And in fact, there was some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making.
Id., at 9. Aaaah. Modification equals reversion to Revolutionary values. The problem wasn't that military commissions were another betrayal of the values that Mr. Obama invoked at the start of his speech. The problem was merely that the Bush Administraiton had not got those commissions right. But that can be fixed. And indeed, that conflation of values, rule of law, and the lawlessness of the predecessor admninistration as a cloak over the reality of the proposal--a continuation of the policy of discrete trials of enemies in sensative situaioins, a policy that remains unchanged--is emphasized.
We will no longer permit the use of evidence -- as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel and more protections if they refuse to testify.
These reforms, among others, will make our military commissions a more credible and effective means of administering justice.
Id., at 9. With respect to a third group of detainees, about 21 persons ordered released, provision must be made for their release. Id., at 9-10. With respect to a fourth category of detainees, those who could be safely deported to another country, ther Obama Administration owuld work to effect those transfers. " So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation." Id., at 10.

That leaves a last category--those who are too dangerous to release in time of actual but undeclared war. "These are people who, in effect, remain at war with the United States. Let me repeat, I am not going release individuals who endanger the American people. Al Qaida terrorists and their affiliates are at war with the United States, and those that we capture, like other prisoners of war, must prevented from attacking us again." Id., at 10. And here Mr. Obama poses an irony. In a context in which there is an absence of rule of law--these are people who ought ot be freed in other contexts because of the failure of the prosecuting entity to behave according to its rule of law standards, Mr. Obama claims that his "administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law." Id. To effect rule of law stabdards for detaining those people who would otherwise have to be released on the basis of the rule of law principles Mr. Obama inviokes to cloth himself in legitimacy, Mr. Ovama proposed "defensible and lawful standards." Id. and he proposes periodic review of detention and procedural guarantees.

The object is not to release these enemies of the state; rather it is to impose a system of "soft rtule of law" a rechsstaat system that preserves process but in this case bent to the gial of keeping these poeple in detention.
But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine in that United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. Id., at 11.
With respect to values, there is only one: enemies of the state must be detained until they cease being dangerous. This notion, unstated but quite present, will likely haunt this administraiton int the coming years.

Mr. Obama than contrasts his studied and serious approach to the issues of Guantánamo with those of the smaller people on Congress.
Now, as our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These are issues that are fodder for 30-second commercials. You can almost picture the direct mail pieces that emerge from many who vote on this issue designed to frighten the population. I get it. Id., at 11.
Worse, those who object to the reasoned proposal put forward by Mr. Obama, can be no better than those offiials of the predecessor Bush Administration--those who act out of fear or other misdirected passion. "But if we continue it make decisions within a climate of fear, we will make more mistakes. And if he refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future." Id. And so Mr. Obama returns us to a black-white binary. On one side stands the Great Father, compassionate, true to those studrdy values at the core of the Republic. On the other side stand those others who who misuse politics, who are Jacobin in their willingness to use fear or some other passion to undermine the strong values and law centeredness of the Republic. In gendered terms, of course, Mr. Obama is evoking traditional male gender archetypes against the traditionally female ones--of dispassion, rationality and duty against a disordered passion, irrationality and narcissism of the traditional female stereotype. The irony, here, though, is that Mr. Obama is deploying these gendered images to his advantage (in terms of the extension of his power and authority) in ways that are similar to the deployment of the same imagery by defenders of the Bsush Administration, who argued for the constitutional power of a president to do what was necessary in foreign affairs. See Larry Catá Backer, LatCrit Symposium, Gendering the President Male: Executive Authority Beyond Rule of Law Constitutionalism in the American Context, 3(2) FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW 341 (2008); Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17(1) Yale Journal of Law & Feminism 1 (2005).

That settled, Mr. Obama moved on to issues of transparencyand security. Here he engaged in a great balancing of values and necessity. Again he starts with a reference to and an attempt to distinguish his actions from those of the prior administration. For that purpose Mr. Obama focuses on the memos prepared by lawyers in the Bush Administration to justify "enhanced interrogation techniques" Remarks of President Barack Obama, Protecting Our Security and Our Values, supra, at 12, which earlier in his address he had labelled "torture." Id., at 2. These memos, Mr. Obama suggested, can serve as an archetype of the sort of infoprmation that ought to be disclosed. And the basis for disclosure: "I released the memos because the existence of that approach to interrogation was already widely known. The Bush administration had acknowledged its existence. And I had already banned those methods." Id., at 12. That might suggest that going forward, no information will necessarily be disclosed with respect to better kept secrets that remain unacknowledged and which are still in progress. Moreover, disclosure would not be permitted where release could be used as a weapon in the porpaganda and values war with the enemy. Thus, the pictures from the prisons in Iraq remain under seal. The perpetrators had been punished. There was no debate about the unlawfulness of the actions. "Nothing's been concealed to absolve perpetrators of crimes. However, it was my judgment, informed by my national security team, that releasing these photos would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning, and inaccurate brush, thereby endangering them in theaters of war. " Id., at 12. This now constitutes "clear and compelling" reasons to avoid release. Though the instrument of that judgement is neither a court, nor effected through legal process. Rule of law here rests on confidence in the virtue of the paterfamilias. This is ironic. It echoes claims made by the prior Bush Administration on the need to trust its judgement. Both, in turn, harken back to a standard of Presidential authority that had been viewed warily by the Courts, at least with respect to domestic actions. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

But Mr. Obama understands the danger of this position. If he is not better in fact than Mr. Bush, then the entire edifice he has been constructing tumbles. And so he offers a formal framework that appears to preserve a diffused control over transparency issues while retaining effective control in matters of national security.
Here's the difference, though. Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions by Congress or by the courts. We're currently launching a review of current policies by all those agencies responsible for the classification of documents to determine where reforms are possible and to assure that the other branches of government will be in a position to review executive branch decisions on these matters because, in our system of checks and balances, someone must always watch over the watchers especially when it comes to sensitive administration -- information. Remarks of President Barack Obama, Protecting Our Security and Our Values, supra, at 13.
The languiage is closely tied to the values rhetoric with which the speech began. But the precise offering is meger indeed. Stripped of its pretty words, Mr. Obama offers no more than a review of the way in which secrets and secrets policies are bureaucratized within the federal government. The proposed oversight is generic--tied to rules, prodecures, bureaucracies and review assessments. It offers no more than a refinement of current practice--and is amorphous enough that--once the glare of publicity recedes, little substantive chamnges will be made.

The connection between transparency, its bureaucratization and thew institutional element of information management was not lost on Mr. Obama. Tied to transparency are issues of the application of the states secret doctrine. Here agian, he appears to find it both distasteful and useful. To effet its use and to insulate him from charges of abuse of power, Mr. Obama suggests clothing the assertion of the doctrine in principle. Yet, here again--theprinciples and the procedures described therein have yet to be developed. Id., at 14.

For all that, Mr. Obama announces the outline of the principles framework, if not the method through which they will be institutionalized. First, the Obama Administraiton "must not protect
information merely because it reveals the violation of a law or embarrassment to the government." Id., at 14. This is not a great stretch. The federal courts have already imposed this rule as a matter of constitutional law. See, e.g., United States v. Nixon, 418 U.S. 683 (1974).; Clinton v. Jones, 520 U.S. 681 (1997). Second, the Obama Administraiton "will not assert the privilege in court without first following our own formal process including review by a Justice Department committee and the personal approval of the attorney general. " Remarks of President Barack Obama, Protecting Our Security and Our Values, supra, at 14. But noi "simple formulas" are offered. Like every administration to preceded this one, secrecy and privilege "often involve tough calls, involve competing concerns, and they require a surgical approach." Id.

Yet, sameness breeds difference. While Mr. Obama will enage in the same activities and for the same reasons as his predecessors, he will do it differently. His is the good heart, the values laden moral measure, on contradistinction to those who came before him. "Now, in all the areas that I've discussed today, the policies that I propose represent a new direction for the last eight years. " Id., at 14. Mr. Obama is different because he will do the same things as his predesesors but do them lawfully, or at least more artfully.
We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it's uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know. And when I release something publicly or keep something secret, I will tell you why.
Id., at 14. And all will be better now. Assuring us that Mr. Obama will engage in the same activities as Mr. Bush, but within the boundaries of his (better) values system "will put our approach to national security on a surer, safer, and more sustainable footing." Id., at 15. But there are no guarantees. These changes will take time and they will be subject to change as conditions evolve and events make prior assumptions less valid.

This, then, will be Mr. Obama's legacy, one that will be the lagacy of the Republic as well. "By doing that, we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next president and the president after that; a legacy that protects the American people and enjoys broad legitimacy at home and abroad." Id., at 15. And it is with legacy that Mr. Obama moves to the end of this sustained aria on notes of desire. To focuis on the future--to focus on Mr. Obama--comes at a price. That price is the abandonment of rule fo law inquireies about past practices by prior administraitons.

But here Mr. Obama muffles his voice, or rather, appears to be speaking out of both sides of his mouth.
I know that these debates lead directly, in some cases, to a call for fuller accounting, perhaps, through an independent commission. I have opposed the creation of such a commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of all values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice.
Id., at 15. But then he uses this again to rise above the squabbling. Again deploying images of maturity, rationality, and virtue, Mr. Obama suggests that those on both sides of the issue are both misguided and childish. Both are dismissed an un-American.
Now, both sides may be sincere in their views, but neither side is right. The American people are not absolutist. They don't elect U.S. to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values nor sacrifice our values for our security so long as we approach difficult questions with honesty and care and a dose of common sense.
Id., at 16. And with this it is time to sum up. For that purpose we return to the high sounding rhetoric with which Mr. Obama began, and for which he is known. Like a classical aria, we return for a recapitulation of the principal melody. For like Olympia, Mr. Obama has been rewound her for the final blast of coloratura. And it starts with Mr. Obama, his office and its intertwining with the Republic and its people who stand below.
Now, both sides may be sincere in their views, but neither side is right. The American people are not absolutist. They don't elect U.S. to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values nor sacrifice our values for our security so long as we approach difficult questions with honesty and care and a dose of common sense.
Id., at 16. It then invokes, quite slyly, Justice Marshall's view of the Constitution and its malleability. McColluch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Compare Justice Marshall: A
Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. . . . In considering this question, then, we must never forget that it is a Constitution we are expounding.
with Mr. Obama's prose:
The framers -- the framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last 222 years. But our Constitution has endured through secession and civil rights, through world war and Cold War because it provides a foundation of principles that can be applied pragmatically. It provides a compass that can help us find our way.
Id., at 16. Mr. Obama closes with an opening--the warning, veiled in th epositive language of inspirational prose--that modern warfare of the type faced against a religious sect will produce certain necessary changes in the way in which the Republic functions. And that closing deserves the most careful read of all.
Now, this generation faces a great test in the specter of terrorism. And unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will the case a year from now, five years from now, and in all probability, ten years from now.
Neither I nor anyone can stand here today and say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my administration, along with our extraordinary troops and the patriotic men and women who defend our national security, will do everything in our power to keep the American people safe.

Id., at 17. and Mr. Obama ends with God and Mr. Obama entwined in a common purpose for the proteciton of the Republic.
I ran for president because I believed that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America. It can and must be a cause that you unites us as one people and as one nation.
We've done so before in times that were more perilous than ours. We will do so once again.
Thank you. God bless you. And God bless the United States of America.
Id., at 17.

Thus Olympia sings. And like Olympia, the speech has the quality of a mechanical rendition. It is an extraordinary piece of rhetoric. But like the others there is a sense that throwing rhetoric at a problem will somehow make it seem different. And thus the rose colored glasses the listener is asked to don. And there is something seductive about this exercise--the deployment of virtuosity like this is rare, refined and intensely interesting. Yet there is something disturbing as well--the idea that Mr. Obama's oratory can serve as the veil between the public and the actions of hte administration. Posterity, certainly will make much of it. But they will no longer have the glasses we are bound to wear.

And thus the disquiet. Asked to respond to Congressional demands for specificity about implementing the closure of the Guantanamo prison, Mr. Obama delivers soaring rhetoric. This rhetoric is used as a weapon--to enhance the legitimacy of Mr. Obama and his people, to de legitimate the acitons of Congress, and to distinguish the curent from the past administraiton. The rhetoric was as much directed as internal opponents as external enemies. This was meant for global consumption. And it was meant also to continue to absorb power which, when advanced by the Bush Administration was opposed. But this usurpation is based on values absent from the past administration. And the most interesting thing about the speech was a return to notions of incarnations of the state in the person of the prince--or in this case the President. The imagery was both subtle but unavoidable. Yet this would serve as an important a threat to the ideals of the Republic as anything misdeed that could be lodged against the arrogance of the principal actors of the prior administraiton.

And as for the questions to which the speech was ostensibly directed--very little. Trust me, Mr. Obama suggests in 17 pages of soaring embraces of values. He will balance; he will decide; he will implem,ent; he will create rules; and he will abide by those rules. But what exactly those are to be remain as misterious as they were before the start of the speech. And with that, I am reminded of a warning delivered by the Supreme Court to an increasingly passive Congress at the time of another and more famus usurpation:
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ((Jackson, J., concurring).

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