Obama's Reset on Guantanamo, Drones

      It was billed as a major speech on national security policy. Four months after inauguration, President Obama reaffirmed his commitment to closing the Guantanamo prison camp. He promised to devise a plan for dealing with detainees who were too dangerous to release but who could not be successfully prosecuted.
      The date was May 23, 2009.
      Last week, almost exactly four years to the day later [May 21], Obama again vowed to close Guantanamo and promised again to devise a plan for dealing with detainees who could not be released or prosecuted. On a new issue, the president announced limits on the use of targeted drone strikes against al Qaeda and promised to look into establishing advance oversight of planned missions.
      Despite the advance buildup for this second-term speech, there was less substance than met the ear. Obama said he would lift his own self-imposed moratorium on transferring Yemenis held at Guantanamo to their home country, but otherwise gave no specifics on how he would move toward closing the prison. As for drone strike oversight, Obama mentioned two possible mechanisms — a special court or an independent oversight board within the executive branch — but raised problems with each one in the very next sentences.
      The speech also appeared to fall short as political public relations. Obama did his best to sound resolute in confronting al Qaeda, but House Speaker John Boehner was among the several Republicans who criticized Obama for going soft on terrorists. Obama got some credit from the political left, but human rights-minded critics feel let down by his failure to close Guantanamo and misled by the expansion of drone strikes done with the president’s full support.
      Guantanamo became a more urgent issue for Obama as a hunger strike spread over the past four months to about 100 of the 166 remaining prisoners, 30 of them being force fed to keep them alive. More than half of the prisoners — 89 — are Yemenis, so Obama’s decision to consider transfers back to Yemen on a case-by-case basis may help counteract the sense of desperation among prisoners held now for more than a decade. Obama also promised to designate a new senior envoy at the State and Defense departments to negotiate transfers to third countries.
      Obama laid blame on Congress for imposing restrictions on detainee transfers from Guantanamo, but critics said the administration could have put more effort into meeting the mandated conditions case by case. One can also ask why Obama is only now asking the Pentagon to find a site within the United States to hold the military trials now being held at Guantanamo. As for the problem of prisoners who cannot be released or prosecuted, Obama said only that he was “confident” that it could be solved – without a hint of what the solution might be.
      Far from apologizing for the drone program, Obama insisted that the strikes were legal self-defense and went on to cite its successes as the reason for now deciding to cut it back. Targeting of al Qaeda leaders and operatives has been so “effective,” the president said, that the “core of al Qaeda in Afghanistan and Pakistan is on a path to defeat.”
      Obama acknowledged that the strikes had left civilian casualties, but instead of putting a number on the toll said simply that the government’s estimates differ from those of human rights groups. Obama made a modest nod toward transparency by declassifying the deaths of four U.S. citizens, only one of them — the al Qaeda propagandist Anwar al Awlaki — deliberately targeted.
      Otherwise, the number of strikes and the resulting casualties remains classified. The New America Foundation, which maintains a database on the strikes, counts 237 strikes in Pakistan and Yemen in the Obama years (compared to 180 during Bush’s two terms) with more than 3,200 people killed. Surely, most of those killed were innocent civilians, but Obama argued that more civilian casualties would have resulted if al Qaeda had been left untamed and more U.S. casualties would have resulted with boots on the ground instead of drones in the sky.
      Despite those justifications, Obama now says drone strikes will be reduced in what he called “the Afghan war theater” and limited elsewhere to attacks on “al Qaeda and its associated forces” that pose “a continuing and imminent threat” to the United States. But imminence remains for the dronemasters to decide. So too the required determination that there is “a near certainty” that no civilian deaths will result. And nothing in what Obama said limits the targets to high-ranking al Qaeda leaders as opposed to rank-and-file dissidents caught up in anti-American jihadism.
      Obama’s progress in closing Guantanamo — or lack of progress — will be easy to measure, but the results of the reset drone program will be hard to determine as long as the strikes and their tolls remain classified. And there will be no independent oversight of the program unless the president puts aside his ambivalence about both of the suggested possibilities.
      To his credit, Obama wants to get away from the Bush era mentality of an endless and boundless war on terrorism writ large. He says in effect that the country cannot remain on war footing waiting for a formal surrender from al Qaeda that will never come. “This war, like all wars, must end,” he says. But Obama needs to combine strong words with strong actions to make that happen.

On Gay Marriage, No Walk-Off Win Yet

      Gay marriage advocates were celebrating last week as though their favorite baseball player had just smashed a walk-off grand slam home run against the team’s most hated rival. In the span of less than two weeks, three more states — Rhode Island, Delaware and Minnesota — completed the enactment of laws granting full-fledged marriage rights to gay and lesbian couples.
      There was reason to celebrate. The latest additions bring to 13 the number of marriage equality jurisdictions in the United States: 12 states plus the District of Columbia. Ten years ago, there were none; the pioneering decision by the Massachusetts Supreme Judicial Court to constitutionalize gay marriage rights was still six months away.
      Around the world, only two countries — the Netherlands and Belgium — recognized same-sex marriages a decade ago. Today, 15 countries have national laws allowing gay and lesbian couples to marry. Brazil may now be the 16th unless the national Congress or Supreme Court reverses the decision by the National Judicial Council last week (May 15) requiring notaries to allow gays and lesbians to wed.
      The advances for gay marriage advocates are easy to exaggerate, however. In the United States, about 57 million people live in marriage equality jurisdictions, but more than 250 million others live in states where gays and lesbians cannot marry. Counting Brazil, around 500 million people live in marriage equality countries, but that is a small fraction of the worldwide population of 7 billion.
      Advances on other gay rights issues are also incomplete. Twenty-one states and the District of Columbia have laws prohibiting discrimination against gays or lesbians in the workplace. But in the 29 other states, it is still legal to fire or refuse to hire someone on the basis of sexual orientation. And Congress is nowhere close to enacting the Employment Non-Discrimination Act (ENDA) to make anti-LGBT discrimination in the workplace illegal nationwide.
      Despite the renewed attention over the past few years to the problems of anti-gay bullying in schools, only 13 of the 49 state laws that prohibit bullying in the schools specify coverage of anti-LGBT harassment or intimidation. A different but partly overlapping list of 13 states plus the District of Columbia have laws prohibiting discrimination in schools on the basis of sexual orientation; the rest do not.
      From the opposite perspective, six states have laws that prohibit school-based instruction of LGBT rights and issues in a positive manner. Texas, which has an outsized influence on school textbooks, is one of them. In effect, a Texas school teacher risks breaking the law by telling pupils about Harvey Milk’s political activism or Walt Whitman’s gay identity. California is unique in the country in requiring schools to teach gay history.
      Gay rights advocates face a wall of Republican Party opposition in making further progress at the state level. Republicans control both legislative chambers in 26 states and at least one chamber in five others. Nebraska’s unicameral chamber is nominally nonpartisan but reliably conservative.
      In those states, gay marriage is a loser, at least for now. In Minnesota, only one GOP state senator joined in the final vote last week clearing the gay marriage bill for Gov. Mark Dayton to sign. Dayton and the other governors who have signed gay marriage into law are all Democrats except for Rhode Island’s Lincoln Chafee, a former Republican turned independent. And even in blue states, gay marriage is not assured of legislative passage. In Illinois, gay marriage supporters appear to be shy of the votes needed to complete passage of a bill in the Democratic-controlled state House of Representatives.
      The same partisan division obtains in Washington. President Obama and the Democratic Party support gay marriage rights; the Republican Party and its leaders are opposed. House Republicans took up defense of the Defense of Marriage Act (DOMA) after the Obama administration concluded the law is unconstitutional. Republicans are all but completely absent as cosponsors on any of the gay rights measures in Congress, including ENDA. And GOP supporters of immigration reform say any provision to help binational same-sex couples will kill the bill.
      The Supreme Court may be on the verge of giving gay marriage supporters one or possibly even two legal victories. In the DOMA case, United States v. Windsor, the liberal justices plus Anthony M. Kennedy appeared ready during oral arguments March 27 to strike down the law. A ruling to that effect would get the federal government out of the business of discriminating against same-sex couples legally married in their own states.
      In a second case, Hollingsworth v. Perry, the court may either strike down California’s gay-marriage ban, Proposition 8, or leave in place the federal appeals court decision that ruled the measure unconstitutional. Either action would bring marriage equality to California and its 38 million people. But Supreme Court watchers doubt that the justices are ready to constitutionalize marriage rights for same-sex couples nationwide.
      In short, for gay marriage — and gay rights generally — the great work has only begun. Public opinion has shifted: polls now uniformly show a majority of Americans favor allowing gays and lesbians to marry. But the political process lags — and will continue to lag until more Republicans decide to help form a bipartisan consensus. Until then, gay rights fans can cheer, but the game is not won.

Military Guilty as Charged on Sex Abuse Cases

      Many an overworked district attorney might welcome an offer from the federal government to take over prosecuting one of the office’s cases. But Arlington County (Va.) Commonwealth Attorney Theo Stamos was not tempted when she got a call from a Pentagon lawyer offering to handle the sexual assault case against an Air Force colonel who, improbably, happened to be the head of the service’s sexual abuse prevention office.
      “It occurred on an Arlington County street,” Stamos told a reporter for the online news service Military.com about the post-midnight May 12 arrest of Lt. Col. Jeffrey Krusinski. “Arlington police made the arrest. He was in a civilian capacity at the time. There just didn’t seem like there was any reason to not go forward.”
      Stamos, a veteran prosecutor in her second year as commonwealth attorney in the suburban Washington, D.C., jurisdiction, said she was aware of the simmering controversy over the military’s handling of sexual abuse cases. But she avoided casting aspersions on the Pentagon’s ability to do justice in such cases. “I’m aware of the phenomenon, but it didn’t have any impact in what we are doing,” she explained.
      The timing of Krusinski’s alleged offense — drunkenly groping a woman’s breast and buttocks outside a Crystal City bar barely a mile from the Pentagon — could hardly have been worse for the Pentagon. A few days earlier, the Washington Post had aired the controversy over an Air Force general’s unusual decision to overturn the sexual assault conviction of a captain at Vandenberg Air Force Base in California. Then, just two days after Krusinski’s arrest, the Pentagon released survey results indicating a one-third increase in the incidence of sexual harassment and abuse among military personnel over the past two years.
      Along with another overturned sexual assault conviction earlier in the year, the news seemed to show that the military command structure simply does not understand the problem or know how to deal with it. The Commander in Chief was among those who were angry. “'The bottom line is, I have no tolerance for this,” Obama said in a May 7 news conference. “If we find out somebody's engaging in this stuff, they've got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”
      Obama added that he wanted victims of sexual abuse in the military to know that “I’ve got their backs.” But the two reports released by the Pentagon earlier that day suggested that many in the military lack confidence in how the military justice system handles such complaints.
      The confidential survey of active duty members found that 6.1 percent of women and 1.2 percent of men reported having experienced unwanted sexual contact — defined as anything from unwanted touching to rape. Extrapolating from the total number of active duty personnel — 1.2 million men and 203,000 women — the Pentagon estimated that 26,000 service members in all (12,100 women,13,900 men) at least felt sexually violated over the past year.
      Yet the separate report on actual sexual abuse cases showed only 3,374 complaints in 2012. The figure was up from 3,192 in 2011, but it showed — and the survey confirmed — that many service members consciously decide not to make a complaint. Among the reasons given for not reporting an incident: fear that the complaint would not be kept confidential.
      The report touts steps taken within the past year to increase “victim confidence.” More serious cases now have to be handled by a high-ranking officer with court-martial convening authority. Victims can request expedited transfer from their assigned command or base. Sexual assault specialists and victim advocates are now assigned at the brigade level. And case records will be retained for 50 years.
      The Pentagon is resisting the more fundamental change being advocated in Congress by, among others, two of the Senate’s most prominent female members: California’s Barbara Boxer and New York’s Kristen Gillibrand. The two Democrats are planning to introduce legislation that would have sexual assault cases handled by specially trained prosecutors outside the military’s normal command structure.
      The brand-new secretary of defense, Chuck Hagel, was batting down the suggestion even as he was acknowledging “big problems” in the military’s handling of sexual abuse cases. In the May 7 briefing, Hagel listed more changes in the Uniform Code of Military Justice he proposed just last month to limit commanders’ authority to change findings in courts martial and to require written explanations of any changes in sentences. But Hagel insisted that authority over sexual abuse cases “has to remain within the command structure.” Any separate procedures, he said, “would just weaken the system.”
      The evidence to date fails to inspire Hagel’s professed confidence in the military’s existing command structure. The New York Times editorial board listed the military’s sexual abuse scandals of the past two decades: Tailhook (1992), Aberdeen Proving Ground (1996), Air Force Academy (2002), Lackland Air Force Base (2011). Now add Krusinski’s easily satirized arrest for the kind of offense that he was in charge of preventing within the Air Force.
      Krusinski pleaded not guilty and is entitled, of course, to a fair trial. The military command structure has already been tried, however, and been found wanting. Congress and the president are right to consider new procedures for prosecuting sexual abuse cases instead of relying on practices and policies that have failed to effectively combat the problem up to now.

On Bush v. Gore, O’Connor Belatedly Regrets

      After nearly 35 years on the Supreme Court, Justice John Paul Stevens thought back to his first term to list the one vote he most wanted to have back. Stevens joined with moderates Potter Stewart and Lewis F. Powell Jr. in the pivotal opinion in Griggs v. Georgia (1976) that allowed states to resume the death penalty under procedures to narrow its use to defendants most deserving of execution.
     ”I thought at the time,” Stevens told NPR’s Nina Totenberg in September 2010, three months after his retirement, “that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." Over the years, however, Stevens said the court expanded the cases eligible for the death penalty, undermining his original premise. “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing,” he said.
      Stevens is not the only justice to have a change of mind after leaving the bench. Powell famously expressed regrets about his decisive vote in Bowers v. Hardwick, the 1986 case that upheld state anti-sodomy laws. ”I think I probably made a mistake in that one,” he told a group of New York University law students in October 1990, three years after retiring. A full generation of gay men paid the price for Powell’s mistake by living under a legal cloud until the court reversed the decision 17 years later in Lawrence v. Texas (2003).
      Now comes retired justice Sandra Day O’Connor to express regrets about her vote in another, even higher-profile case: Bush v. Gore, the 5-4 decision in December 2000 that gave George W. Bush the presidency by blocking a popular vote recount in the election-deciding state of Florida. The court “took the case and decided it at a time when it was still a big election issue,” O’Connor told the Chicago Tribune editorial board on April 26. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
      “It turned out that the election authorities in Florida hadn’t done a real good job there and kind of messed up,” O’Connor continued. “And probably the Supreme Court added to the problems at the end of the day.”
      Like Powell, and unlike Stevens, O’Connor cannot rationalize her vote after the fact on the basis of unforeseeable developments. The stakes in Bush v. Gore could not have been clearer: not only the White House but also public confidence in the court itself. And the path to a decision that could have safeguarded public confidence in the court was available: the proposal by Justices David H. Souter and Stephen G. Breyer to send the case back to Florida with instructions to adopt uniform criteria for the further recount.
      O’Connor chose instead to join with Justice Anthony M. Kennedy in the pivotal opinion that stopped the election recount on the basis of a previously undiscovered federal constitutional right to uniformity in state election tabulations. O’Connor’s cryptic comments more than a decade later shed no light on why she did not join Souter and Breyer in letting the recount proceed. As one other alternative, O’Connor could have taken the route she now says might have been best: she could have voted to dismiss the case without a ruling — in effect, saying “Goodbye.” That would have provided a decisive fifth vote for letting the recount go on.
      The two senior veterans of the Supreme Court press corps are taking opposite views of O’Connor’s after-the-fact regrets. In a column on the New York Times blog Opinionator, the newspaper’s now semiretired Linda Greenhouse is lightly scornful of O’Connor’s comments, noting that her change of heart comes too late to make a difference. Shortly after the original decision, Greenhouse wrote in the Times’ house organ, Times Talk, that Bush v. Gore marked the first time in three decades of covering the court that she viewed it as having issued a truly partisan decision.
      From the opposite perspective, Lyle Denniston, now with SCOTUSblog after more than 50 years of covering the court, stoutly defends the court’s decision. In his view, the court had no alternative but to hear Bush’s appeal of the Florida Supreme Court’s decision. The public would not have been content to let lower courts decide what had evolved into a constitutional crisis, Denniston argues in a posting on Constitution Check, the blog of the National Constitution Center. And he has contended in other settings that the court’s decision was right on the merits and that Bush’s narrow victory in Florida has been confirmed by subsequent journalistic efforts at a complete recount.
      On the court’s decision to take the case, O’Connor’s regrets are beside the point. With only four votes needed to grant certiorari, O’Connor’s vote was surely unnecessary. But those, like Denniston, who argue that a complete recount would not have mattered overlook the effect on the court itself, as Stevens explained in his dissenting opinion. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” Stevens wrote, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”