Monday, May 25, 2009

Restraints on Power

There is a certain freedom afforded to the loyal opposition. The opposition can stay on the attack and constantly criticize incumbents without the need to be consistent or even responsible for the consequences of an action proposed. There is nothing new about this phenomenon. Politicians from Thomas Jefferson, to Benjamin Disraeli to Richard Nixon would not want history to judge them based on their behavior during the time when they were ascending to power.

Moreover, a negative position is always easier to sell than positive change. Lobbyists will charge their clients much more to push legislation through, than to defeat a bill.

Nevertheless, the day of reckoning comes when the minority party seizes the reins of power. That day has arrived for President Obama. A case in point is the consternation brewing within the Democratic Party over the so-called torture issue. This appeared to be a perfect issue for the Democrats. They were claiming the moral high ground when they protested that prisoners were not being treated humanely. Because the military intelligence apparatus operate in secrecy, their defenders would not reveal what was actually going on. Therefore the Democrats could conjecture and make accusations of all sorts of misconduct and the military would not fully respond. It was not a fair fight.

President Obama is now charged with carrying out his promises to get rid of torture, to abolish Guantanamo, to try those charged with crimes in American courts applying our constitutional principles, or to send some of the accused terrorists to other countries for trials governed by their laws. He is discovering that reform is not quite so simple either as a matter of policy or practicality. Other countries are refusing to bail him out by accepting these hot potato inmates. (Their politicians want to be reelected.) Senators are willing to authorize trials in our courts but not in their state. (They want to be reelected, too.) He is learning that the maligned military tribunals serve a useful purpose, so he is replacing them with a newly reformed tribunal. I suspect that the principal reform is that he will give them a new name. His first attempt at transparency was to renege on his agreement to release pictures of torture.

The sad part is that the torture issue was somewhat mooted even before the 2008 campaign, for the simple reason that most of the work had already been done in the Bush Administration. It now appears that the Bush administration had gone a long way to eliminate the worst abuses. I understand that the last water boarding occurred in 2003, and none is contemplated in the future. There was no need for the Democrats to engage in this debate on that technique other than to preserve an issue for the 2008 political campaigns.

Moreover, I suspect that the Democrats are learning that public support for so-called torture is broader that they realized. I cannot remember an instance where a suit against law enforcement officers for violation of civil rights of persons in custody was sustained by a jury. In one prominent instance, a federal jury in Birmingham refused to award damages against police officers who allegedly used electric cattle prods on the prisoners. I thought that perhaps the strong pro law enforcement sentiment is limited to the conservative South. But when a California jury ruled in favor of the police officer defendants who were caught on tape beating a Rodney King while he was lying on the ground, I decided that jury unwillingness to hamper law enforcement efforts, even when violent and abusive, reflects a national rather than regional attitude among middle class voters. (Democrats are politicians, and they want to be reelected.)

What conclusion is to be drawn from all of this? If you are not an Obama fan, I am sure you can enjoy watching him squirm. I believe, however, that there is a more important message coming out of this mess. It is simply that our President is willing to back off when he sees that a former course is going awry. To me, his actions of implicit retraction are signs of strength. It is better to be strong in the face of criticism from his own party, even if he is called a coward, than to be cowardly in order to appear to be strong.